Complainant

Respondent

Anonymised Parties

Production Operator

An Automotive Company

Representatives

Appeared in Person

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-00024366-001

20/12/2018

This case centres on a claim for Unfair Dismissal in December 2018 following a Disciplinary process some 2 months earlier where a demotion and final written warning had been issued. The Respondent disputed the claim and contended that the dismissal was of “the last straw” variety and ha been fully warranted following a sequential exchange of comments covered by gross insubordination.

The Complainant presented as a Lay litigant and presented his case orally. the Respondent was represented by an Independence Human Resource Consultant. The Respondent and 4 witnesses.

As the Complainant had not prepared a written statement to present at hearing, I offered him some time to do so post hearing. I requested the Respondent furnish me with whatever notes were in existence for noted meetings on August 29 and September 29, 2018. I also sought a copy of the cited grounds of appeal or the application of Disciplinary sanction.

The Respondent hand delivered documents more than this request some time post hearing. the Complainant was provided with an opportunity to comment on all.

The Respondent operates an Automotive part (safety device) business and has 20 employees. The sole customer is the United States.

The Respondent rejected the claim for Unfair Dismissal. The Respondent outlined that the Managing Director was ill and absent from the business between April and August 2018.

During the time line of February2018 to April 2018, three Polish female workers, based at the plant had raised grievances. This prompted a reclarification programme on Dignity at Work issues and other Cultural awareness issues, which was strongly opposed by both Supervisors. The Company Director addressed everyone at the plant on the need for change and made an extensive presentation on the need for change.

The Complainant, a Day Supervisor eventually signed the staff handbook and committed to the Cultural changes.

The Respondent hired a new operations Manager in June 2018. Industrial machines were discovered to be running differently inter shift and these were reconciled. The Respondent found shortfalls in the Supervisors accountability in the face of a line finishing early. Meetings and a formal investigation followed, and the Respondent formed the view that the complainant was not co-operative. He obtained legal advice on CC TV.

A Disciplinary process followed where the Complainant was demoted to general operator and a deduction in pay followed. He was not provided with a new contract and was not expected to serve a probation. The Complainant accepted this change.

The Respondent undertook a Communications Meeting with the Managing Director at the helm. The Complainant was combative and argumentative during this meeting and insulted the MD public ally in front of the other workers.

The Respondent formulated a plan to write to the complainant and ask him to meet the company directly to seek to clarify his intentions at the company. This was unsuccessful and further profanities followed and the MD conscious of the complainant’s background in boxing expressed a fear of the complainant. the Respondent was certain that there was now no choice outside dismissal and dismissed the complainant for gross insubordination. The Respondent did not offer an appeal.

Evidence of Mr O, Operations Manager

Mr O told the hearing that he was a new appointment. He gave an outline of the Mechanical system surrounding the Inter shift machinery. Time was captured electronically and generated a report between the day and night patterns. Supervisors were involved in both systems.

He discovered that certain staff on night pattern had been leaving early. There were discrepancies of leaving up to an hour early and the matter was moved into a Disciplinary process. Both Supervisors had different recalls on the dateline of the early finish times.

The System was rectified post discovery and the complainant was cooperative, up to a point. The Supervisors were the sole employees who faced disciplinary sanction, the other 6/7 shift employees were spoken to.

Evidence of Mr B, Engineering Manager, February 2018

Mr B told the hearing that an issue had arisen on the Technical system where down time was not scheduled and clocking in had not occurred over a certain period (Nov 2017-August 2018)

This created a problem as the product carried a 5-year warranty and a 25-year recall in product. The CC TV was relied on to nett the issues. Mr B submitted that there was a potential for fatal injury to end user in the case of injury.

During cross examination, the Complainant confirmed that he had always clocked in to the point where he had even got other employees to cover this for him in sick leave.

Evidence of Mr MD, Managing Director

Mr MD had been in business for over 30 years and believed in communication meetings. Agendas were standard, and the meetings were time tabled during the changeover of staff at a 2.30 start. Attendance was compulsory and those not rostered were paid for their attendance time.

Mr MD was aware that he complainant was not present at the November 28 meeting and approached him directly to attend.

Mr MD formed the view that the complainant was grandstanding and deeply offensive in his direct statements. He found him aggressive and hostile. The meeting ended on foot of his insults.

Mr MD formed the view that the complainant had not accepted responsibility for the operational lag in the machines on both shifts. He believed that this was at the root of his confrontational behaviour. He denied that staff were just numbers at the plant.

He decided to address him by letter seeking that the complainant would address the group. Mr MD was prepared to put matters behind him if this could be achieved.

Once the complainant came into the requested meeting, it was very apparent that he had no intention of apologising and the abuse was re-activated. Mr MD understood that the complainant may have had issues in his personal life which were troubling him. Mr MD was not prepared to be usurped and cut the meeting, dismissed the complainant and arranged for him to be escorted out.

During cross examination, he re-affirmed that staff were paid to attend communication meetings as the complainant said he was not aware of that practice. He confirmed that he had said “I will decide what to do with you “He denied that he was motivated by ego and told the complainant directly that he was out of control. He denied standing over the complainant grinding his teeth.

He had not considered measures short of dismissal or offered an appeal to the dismissal. He confirmed that the other Supervisor was there longer than the complainant and this informed his retention on day pattern.

In conclusion, the Respondent contended that the complainant was not unfairly dismissed but had destroyed any trust and confidence placed in him by the company through the repeated episodes of in subordination coming so quickly in the aftermath of his demotion and application of a final written warning. There was no way back following the December 5 meeting.

The Complainant commenced work with the Respondent Automotive Company in February 2015. He was promoted through the ranks to the role of Supervisor on day pattern. He worked a 40-hour week in return for €667.19 gross per week. He was stepped back to an Operator Role in September 2018 and his pay was reduced to €449.20 per week. The Complainant was dismissed from his employment on 5 December 2018 and found new work on 4 April 2019. In the event of his claim succeeding, the complainant sought the remedy of compensation.

The Complainant presented as a Lay litigant and outlined his case orally. He submitted that he was approached by the Acting Production Manager, Ms A in October 2017 and requested to rotate in his role as Supervisor on a trial basis onto the evening shift. He was reluctant as the 3-11pm shift was unattractive and objected to its but eventually accepted the change and a 15% pay rise.

The Complainant made some reference to Polish workers having claimed discrimination in April 2018, which he had denied. There were 5 Polish workers and 15 Irish workers on the plant.

The Complainant assumed his role on evening shift and discovered a variance in the work methods on evenings and crucially the shift finished work 20 to 30 minutes in advance of the approved finish time. All targets were achieved, and no quality issues had arisen over the previous 2 years. He reported his concerns the following day to Ms A and understood that the embedded practice would be examined by Senior Management. He requested that the evening shift be returned to where it should be on finish times.

Two weeks into the change, the claimant formed the view that rotation was not working as staff were playing Supervisors off against each other and sought a change, nothing was done.

Ms A was due to leave the company in February 2018. She asked the complainant if he had any final requests for review? He re-affirmed the disparity in finish times over two shifts and Ms A counselled the complainant to have a Standard Operating Procedure in place and be prepared to meet on it.

The Complainant kept the matter live and raised it with Ms A’s successors, Mr B was the immediate successor and he told him that “if evenings finished early, so be it “He later denied this. The Polish workers had complained that they were not permitted an earlier finish in line with the evening pattern.

In June 2018, a new Operations Manager was appointed and inquired into the efficiency and scorecards disparity in day and evening shift during August 2018. The Complainant was consistent in his reportage of this. An investigation followed, and the complainant objected when he was handed a letter and a CCTV time line. He had not consented to this intrusive practice which he termed “covert surveillance “and held it to be illegal. He submitted that he had been unaware of a CC TV Policy.

Around this time also, the complainant had reservations about signing a staff handbook, he was placed under pressure to sign his acceptance of this book of documents. He eventually signed on the 3rd day and then sought to resile from this and declared the signature as void. He submitted that he had been informed that there was no place for him at the company unless he signed it. He told the hearing that he thought he had sold his soul in signing the handbook. Mr B had told him it was “just the law of the land “

On 30 August 2018, the complainant made a personal data access request, which was ignored. However, subsequent correspondence omitted references to CCTV and instead accused him of “Falsifying and collaborating “in the shift disparities. This culminated on 7 September 2018 with a notification to both Supervisors that they were to be demoted to operators with commensurate salary decreases. A Final writing warning was concurrently applied to both Supervisors. The Complainant appealed the decision and the appeal was denied. He requested minutes, but these were denied. The Complainant maintained they were never compiled in the first place.

The Complainant outlined that he was very bruised by the 8-week investigation into the inter shift productivity disparities.

The Complainant sought a meeting with the Managing Director and expressed his views that the disciplinary outcomes were predetermined. This was hotly contested by the MD.

The Complainant was demoted on September 19, 2018.

Two weeks later, the complainant was called to the Operations Managers office and informed that he was to roster onto evenings. the complainant was appalled at this clearly retrograde step. It was custom and practice at the company for lateral rotation to occur from evenings to days not vice versa and he held a seniority he believed was overlooked.

The Complainant described the structure of monthly communication meetings at the plant. One was scheduled for November 28. He had formed the view that he was be “made an example “of at that meeting and he made a conscious effort to avoid it. He arrived on time for his shift at 3pm but bypassed the 2.30pm meeting by sitting in the canteen. The other former Supervisor was sick and thus absent that day.

Feedback from his colleagues indicated that the MD was actively seeking news of the complainant. He approached him in the canteen and invited him to attend. The complainant had no intertest in attending but went along. During a Q and A session, the complainant inquired why a certain employee had been promoted? The MD shut down communication by responding “I am not discussing anyone’s job “when the complainant then declared that “people here are just numbers and he didn’t care about them” the MD expressed his disappointment in the face of that remark and the complainant responded by saying “You are a full-grown man, suck it up buttercup”. The meeting ended.

On the next day, the complainant received a letter requesting him to outline in writing how he could fit into the company and to publicly retract his offensive statements within a week. The Complainant began to deliberate and felt he could rationalise the “buttercup “statement but felt that he had no more to give back to the company. He suspected that the MD was orchestrating for a public climbdown and apology to inflict maximised personal humiliation. He was prepared to offer a 1:1 apology. He requested a meeting and was invited in on December 5.

He opened the meeting by reflecting that the MD had set the tone for the meeting when he cut him off when he raised a GDPR issue. He asked whether the complainant had come to apologise? and the complainant directed further profanities towards him in communicating that he was not prepared to apologise. The Respondent left the room and returned with a letter of dismissal with his name on it

The Complainant submitted that he had been punished on a disproportionate basis and unfairly dismissed.

During cross examination,

The Complainant was asked to explain why 5 discussions on a staff handbook had not allayed his concerns. He explained that he understood that if the line stopped it was automatically staff fault. he felt the wording was too broad. He also had issues with Right to Search clause and CC TV Policy

The Complainant re-affirmed his opinion of being unsupported at work. He accepted that Management had a certain right to manage and was not objecting to that. He had intended on bringing witnesses to the hearing of staff who had inquired into his welfare.

The Complainant concluded by saying that he had taken the case as he had an honest opinion that he had been wrongly treated by his former employer and his right to be heard had been denied. He believed that he was exhibited at November 28 as a trophy and he wanted to have the events of the case independently analysed as 10 years from now, he didn’t want to have any regrets.

The Complainant expressed a high level of disbelief in response to the supplementary documents submitted by the Respondent post hearing. He clarified that the Respondent chronology of events differed from one prepared some months earlier. He also clarified that the Polish workers had complained that they were expected to communicate in English rather than their native tongue and it was on that basis that they contended they were discriminated against rather than the quality of their supervision.

I have taken some time to reflect on the circumstances of this case. I have considered all written and oral submissions. My task here is to decide whether the complainant was unfairly dismissed or not?

This brings me immediately to the parameters of Section 6 of the Unfair Dismissals Act 1977 -2015

Unfair dismissal.

6

6.— (1) 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.

In accordance with Section 6(4) of the Act, the Respondent is permitted to submit a legal defence of Conduct and this runs right through the Respondent case.

However, Section 6(7) of the Act permits an Adjudicator to have regard for the reasonableness of the actions of the respondent in arriving at the decision to dismiss within the much quoted from Lord Denning “the band of reasonableness “. This is an important window for me to examine.

In JVC Europe ltd V Panisi [2011] IEHC 279[2012] ELR 70, a case of disguised dismissal, Des Ryan, BL in Redmond on Dismissal Law quotes a useful paragraph:

The issue for the Tribunal deciding the matter will be whether the circumstances proven to find the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal.

The Complainant approached this case some 15 days post his dismissal. I note that he found new work some 4 months later. He received two weeks pay in lieu of notice and he described his new work as a better job.

I have listened very carefully to the parties in this case. Both principals at the centre of the case, the complainant and Mr MD presented as very hurt and wounded by the events which occurred as a direct result of the discovery of discrepancies in finish times on the evening shift: day shift. Both parties are fully certain of the validity of their respective arguments in the case. The Complainants case rests on “inheriting “knowledge of the malpractice and The Respondents in a tangible fear of the implications of this malpractice on the business.

My role here is not to find what the complainant did or didn’t do was right or wrong, but rather when armed with the facts did the respondent meet the test for substantial grounds to justify his dismissal and was the action of dismissal within “the band of reasonableness “In Abdullah V Tesco Ireland UD 1034/2014, the EAT held:

What is required of the reasonable employer is to show that he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate.

From my consideration of the facts as presented, the complainant had a very swift ascent to the Supervisor position in his first year of employment. I note that he had a very short training in the role and I found that he failed to appreciate the enormity of responsibility that rests in such a role or how the role would be judged when things go wrong. I can appreciate that he genuinely believed that he raised the topic of the shift finish times disparity consistent when he discovered it. He referred to it as “inherited “He became very fixed on submitting that he had reported it to two named senior managers, but the practice continued until the newly appointed and visibly more experienced operations manager discovered stark anomalies in manual and electronic records.

I found that the complainant had an awareness that the practice was wrong, but he presented to an informal and formal investigation without a concurrent awareness that he was the person who should make the standardisation of finish times happen. He assumed someone else was to step in and take the lead. It was not lost on me that that Mr MD was absent to the company through illness in the early months of 2018 and that may have depleted the leadership team.

The Complainant presented at hearing as combative and simultaneously very hurt by what he had experienced at the company. I have read all the documents associated with the early disciplinary sanction applied in September 2018. I wish to record the following observations based on my review of those documents and evidence adduced at hearing.

1. The Complainant was appointed as a Supervisor in October 2015. He signed an acceptance of his Terms and Conditions and supported the statement off the Company’s Cultural Values in 2018. However, I have established that he was ill equipped for the role of Supervisor and struggled in the face of the embedded practice of early finish times. He was afraid of being “the bad cop”.

2 The Complainant felt isolated and unsupported when the shift anomaly was formally identified by an experienced Operations Manager. He felt betrayed by two Senior Managers whom he genuinely believed carried an Organisational awareness of the practice but no footprint of disclosure or rectification. He felt that along with his colleague on day shift, he had been made an example of.

3 The Complainant rationalised that   productivity deficit or target deficit did not materialise    as a direct consequence of the anomaly.

4 The Complainant did not recover his sense of self-worth from the application of the double sanction of Demotion and final written warning. He was not provided with a targeted improvement plan in line with the company procedures. He made an early submission that he saw his employment ending in a claim for constructive dismissal at the disciplinary sanction appeal stage.

For my part, I felt that the complainant was underrepresented at the early investigations and the Disciplinary hearing. I noted that the complainant was not provided with reasons why his 5 points of appeal failed, and this copper fastened his view that he was “a persona non grata” at the company. I am afraid that together with his complete opposition to the CC TV policy/procedure, he adopted a personalised approach at an early stage when an objective and dispassionate approach would have assisted him better. He took the wording of the letter of Disciplinary sanction very personally and did not take the time to reflect that the company wanted to see evidence of a responsible rather than a hesitant manager.

I have also found that the complainant did not give himself enough chance to be heard at appeal as he led with a viewpoint that the process was tainted by a pre-determination from the outset. This amounted to an overly defensive approach which surprised me in the face of the 5 logically laid out grounds of appeal.

I am considering these early events in the case as the Respondent has submitted that this was a “last straw “dismissal.

In returning to Des Ryan’s commentary on Donnelly v Arklow Pottery ltd UD 572/1990 where the EAT held that for a “last straw dismissal” there must be a blameworthy act on behalf of the employee established to the satisfaction of the employer judged by the standard which incorporate

1.Employer belief of misconduct

2.Belief to be sustained by evidence on the balance of probabilities. Investigation be reasonably full and fair, judged by a reasonable employer acting in a bona fides way.

3 Placing the accused on notice of the allegation and “giving to the employee a reasonable opportunity to defend himself and such representation as may be reasonable having regard to procedure, agreements and the realities of good industrial relations “

It is of note that the Respondent operated a Works Council and operated a staff handbook. I noted that the Disciplinary procedure presented at hearing was undated.

This brings me to the circumstances surrounding the dismissal. In my review of this case, I found that the double sanction of demotion and final written warning was extremely harsh. I say this as it was not accompanied by any corrective action plan or any reciprocal action towards the staff, all of whom were participant in a practice before October 2017, when the complainant first became aware of it. Events of this nature are seldom, if ever the fault of one person and I have established that the complainant had visibly disconnected from the company on his demotion and reduced pay. While I appreciate he was hurting, I found his evidence on his need to confront Mr MD in full view of his peer group to be self-limiting and immature. It was the wrong place, wrong time and the wrong message to be associated with. Mr MD was leading a staff communication meeting and the complainant sought to derail this meeting. It did not work. The Complainant did not outline that he had been mandated to carry a challenging message from staff and public berating of a Senior Manager so soon after his own internal difficulties was ill advised.

I went on to consider both parties responses to the follow up letter dated November 29. The Respondent had written a very frank account of the impact off the complainant’s behaviour at the November 28 meeting. The Complainant dismissed the bona fides of the letter and submitted that the proposed resolution of public apology was impossible for him. He “could not bow any further” He then went on to mitigate this by stating that if he had been asked for a 1:1 apology he would have complied. Yet, he did not put that to Mr MD at any stage and if he had this plan, he replaced it with further personal insults which placed a final nail in the employment relationship.

It was clear to me that he provoked Mr MD into terminating his employment. I found that his request for an instant notification of the dismissal stood out. I also found that he had been prompt in his appeal of the double sanction in August 2018, yet he did not appeal this dismissal, a far more serious sanction. This was inconsistent and remains unexplained.

However, the burden of proof on whether the dismissal is fair or unfair rests with the respondent in the case. As already stated, I thought that the respondent placed an arduous sanction in the form of the double punishment on the complainant in August 2018. He did not make his way back to any sense of equilibrium after this and I would urge the respondent to reflect on the approach adopted there. Disciplinary action is meant to corrective, I did not identify any pathway of rehabilitation for the complainant. I am not certain that the subsequent relocation to a new shift was entirely fair, however, I accept this was not appealed.

The workplace in the modern sense is a changed “ animal”, social media has chipped away at any boundary between work and home in many cases and our communications styles have been encouraged to become more informal and a move away from the traditional “ master and servant “ approach .However , even taking this to its very height , the undisputed verbal interactions between Mr MD and the complainant were extraordinary over Nov 28 and December 5, 2018 .

The complainant faltered on receipt of the double disciplinary sanction in August 2018, I have established that the complainant had lost all respect for the company and its agents before the November 28 meeting. I have established that the Respondent had reservations about the complainant but was willing to work within the approved margins to affect a resolution. I found that the assembled team on December 5 was counterproductive to resolution. It may have helped if the complainant had made a written submission in response prior to meeting.

At any rate, the complainant had an exasperating affect on the Respondent on December 5. An immediate decision was taken to dismiss the complainant without appeal. This was a clear departure from the company policies and did not meet the test for a” last straw” dismissal. While the respondent had an overwhelming sense of being wronged, it activated the nuclear arsenal prior to exhausting the agreed procedural framework of suspension, investigation, representation, consideration of alternative courses of action prior to this zenith action.

I have established that the Respondent had substantial grounds leading to the dismissal. Trust and confidence had disappeared through a suite of profanities and insults directed at the Managing Director of the company who expressed a fear of the complainant. Any proposal to work through a proposal to stabilise matters had been rejected by the complainant. I accept that the working relationship had been reduced to flitters at this point. It was void. I find that the Respondent can rely on the defence in Section 6(4) on conduct in this regard.

However, I must also establish that the compliant was terminated prematurely and without recourse to the hall marks of fair procedures and natural justice which was contrary to the respondent policies in Dignity, Respect and Disciplinary in that area. He was not provided with an appeal. This placed a hole in the band of reasonableness test and does not satisfy the terms in Section 6(7) of the Act.

The Dismissal was substantively fair but procedurally unfair.

At the end of the hearing, the complainant said that he needed to take the case to satisfy himself 10 years from now that he had not denied himself the opportunity to test his case.

I was happy to listen to both sides. I could identify unresolved governance and support issues from both perspectives and these were underlying issues in the case.

However, for me, this case was about the necessity for omnipresent respect between a boss and a worker and vice versa. Sadly, this had eroded over a 4-month period to dismissal and both parties should take some time to reflect on this. The complainant had worked without sanction for 2.5 years prior to the discussions on the shift anomalies. What followed was tragic and very regrettable for everyone. I hope it has provided some learning and opportunity for ongoing performance appraisal for all going forward.

I find the claim for unfair dismissal to be well founded.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found the claim for unfair dismissal to be well founded. However, I have also identified that that the complainant was the early architect of the design of the dismissal by his provocation and failure to manage his post disciplinary procedure residual anger towards his then employer. His unresolved anger was then directed towards the Respondent who in turn rejected this approach by terminating his employment without recourse to fair procedures.

I find that compensation is the only practical remedy open to me in this case. Considering notice paid and new work found in April 2019, I award the complainant, €3,300 in compensation in respect of the unfair dismissal. This sum includes an incorporated deduction for his contribution to the dismissal.

Claim for Unfair Dismissal