Complainant

Respondent

Anonymised Parties

Shop Manager

Charity

Representatives

Vivian Cullen SIPTU-Trade Union

Jamie Grimes DAS Ireland Michael McNamee BL

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-00029160-001

19/06/2019

The issue in contention concerns the alleged Unfair Dismissal of a shop manager employed by a charity who operates a chain of retail stores.

The shop manager alleges that an animus between himself and his recently appointed manager arose because of his strong view that his shop shouldn’t open on Sunday. In turn this disagreement between both of them; began a chain of events that ultimately led to him being dismissed. The claimant worked for the charity since 2004. When he joined the charity he states that he clearly communicated that he would not work on Sunday and this was accepted. In fact his shop hadn’t opened for Sunday trading for about 12 years or more. He claims with time, that this practice of not being required to work on Sunday became an implied term of his contract. However, as shop manager, if required he would organise and plan to ensure that the shop was open on Sunday. He continued to have serious reservations about the business benefits of doing so based on the location of the store and that he found it difficult to recruit volunteers to work on Sunday. He had managed to open the shop for Christmas; however, he found it very difficult to open as requested in February 2018 for Sunday trading. He simply couldn’t recruit volunteers or manage the existing shop resources to find cover for Sunday opening.

He was dismissed on the 24th April 2019 based on a finding of serious misconduct relating to his failure to ensure that he managed and planned to ensure that his shop traded and opened on Sunday and having regard to the fact that a final warning was on his file. The complainant refuses to work on Sunday; however, he had not refused to open the shop on Sunday. He had a previous final warning for serious misconduct for failing to carry out a reasonable management instruction to facilitate and manage the opening of his shop for Sunday trading. He alleges that the sanction of dismissal was harsh and disproportionate to the wrong alleged. He also believes that the disciplinary process was flawed and contaminated as his accuser was also the decision maker who made the decision to terminate his contract. The company breached the Statutory Code relating to Grievance and Disciplinary procedures by failing to ensure a fair and impartial procedure.

The shop manager received a first final written warning on the 15th July 2018 in accordance with the charity’s disciplinary policy. The allegations investigated related to a reasonable request to facilitate the opening of his shop on Sundays from the 11th March 2018 and also to open the shop on Easter Monday the 2nd April 2018. On or about the 18th February 2019 the charity initiated another disciplinary investigation for another alleged failure to open the shop on Sunday. Based on this process it was determined that serious misconduct had once again taken place by failing to carry out a reasonable instruction. As he had received a final written warning previously, as detailed in correspondence from his employer dated 16th July 2018, the decision was made, based on the facts, to terminate the shop manager’s contract for a re-occurrence of serious misconduct. This decision was appealed.

The Charity wrote to the complainant on the 29th May 2019 detailing the reasons why the claimant’s grounds of appeal were not upheld. The disciplinary investigation had been conducted by someone impartial and not involved in the matters under investigation. The allegations of unfair treatment were rejected having regard to how the disciplinary procedure was fairly and assiduously applied, particularly relating to the principles of natural justice.

The test to be applied by the adjudicator was not to substitute the adjudicator’s own view of the particular employer but to apply a band of reasonableness test where it can be shown that a reasonable employer would regard the circumstances as sufficient reason for dismissing. Without prejudice to the arguments made justifying the dismissal; it was also contended that the shop manager contributed to his dismissal within the meaning of Section 7 subsection (2) (f) of the Unfair Dismissals Act 1977 as amended.

The principle of ‘Nemo Iudex in Causa Sua’ (no one is judge in his own cause)was raised by the complainant, who alleges that his manager who initiated the disciplinary action; was also involved in the decision making to terminate his employment. The shop manager contends that his immediate manager who made the allegations against him; should have been excluded from any involvement relating to what sanction or discipline should apply if any. It is argued that the disciplinary process was flawed because of this. It is contended that this was a breach of the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and it breached natural and procedural justice by allowing his accuser to be involved in the decision to dismiss.

The charity argues that the principle of necessity required that the manager (who the complainant alleged was biased and held an animus against the complainant); only became involved after two independent investigations and an independent appeal process had been completed. The right of representation had been afforded to the claimant and the allegations clearly communicated to him. The investigations had found that the complaints were valid and deemed they amounted to serious misconduct. A final written warning was in place and the second investigation found that the failure of the shop manager to facilitate Sunday opening was serious misconduct. Having regard to the charity’s policy, two instances of serious misconduct was deemed to justify dismissal. The complainant’s manager did communicate the decision and the reasons for the dismissal having regard to the appeal process; however, that decision was based on two independent investigations, a first final written warning and an appeal of the second investigation that also found against the complainant and upheld that serious misconduct had taken place.

The onus of proof rests with the employer that they acted fairly. The employer did not make out why the principle of necessity required that the claimant’s manager had to be involved in the decision to terminate the complainant’s employment. In correspondence dated the 29th May 2019 the complainant’s manager writes as follows:

“Following your appeal hearing, both ( anonymised named manager) and I confirm that the decision of serious misconduct is an appropriate sanction and agree that as you already have a live disciplinary sanction, of a final written warning on your personnel record, this further act of misconduct means that the decision of dismissal stands.

You have now exercised your right of appeal under the Company Disciplinary Procedure and this decision is final.”

There is an onus on the employer to show that the procedures were fair, impartial and without bias when challenged by the complainant, that the disciplinary procedures were flawed. While it is accepted that the principle of necessity is an exception to the rule of no one is judge in his own cause, in this instance the reasons for that exception have not been adequately explained. The decision to dismiss is the ultimate sanction. It should be made as a last resort except in the most exceptional of circumstances having regard to the principle of proportionality.

In an employment situation the size of the organisation and its reporting structures can call for managers to become involved in a stage of the disciplinary process that may be perceived as biased, but is ultimately necessary. In this case the decision to dismiss was made by two managers, the complainant’s manager and another manager not involved in the retail side of the charity. This fact of two managers making the decision would tend to negate, on the balance of probabilities that the complainant’s manager, due to the principle of necessity, was required to be involved in the decision to dismiss. The charity did not explain adequately why it was necessary for the complainant’s manager to be involved in the decision to dismiss having regard to the charity’s management structure. I find that the disciplinary procedures applied by the charity having regard to all the circumstances of this case were not applied fairly and impartially.

The complainant argues that the decision to dismiss was harsh. While he did not agree with the management decision to open on Sunday he attempted to facilitate that decision. He was not refusing to carry out a legitimate and reasonable instruction, he was not being insubordinate, and he tried to make arrangements to open the store, but was unsuccessful. Two independent investigations found that the complainant failed to carry out a reasonable instruction. Other shops that previously didn’t open on Sunday were also given the same request and did so. The complainant argues that his shop is not in a good location for Sunday trading and as no other shops or very few shops trade on that street on Sunday both the business case was weak and the ability to recruit volunteers made more difficult because of these facts.

The charity while placing emphasis that the reasonable instruction relates to ensuring that the shop trades on Sunday, in correspondence dated 29th May 2019 which confirmed the decision to dismiss was final states:

“1.Due to the changing retail environment and to enable (redacted) to maximise the potential of our shops, a flexible approach to working hours is required. At busy times of the year there may be a requirement for ensuring the shop is open 7 days a week and late nights as required. Therefore, when necessary the post holder may have to undertake additional hours to ensure shop opening.”

“6. The next point you made was that you asked your line manager to hire an additional person to work only on Sundays, but this was refused. The shop is open for 52 hours each week which includes 4 hours on a Sunday. As [redacted]already employed a Shop Manager and Deputy Shop Manager, both working 36 hours per week, the request for an additional person was refused as we already have sufficient paid hours to cover the full requested opening hours as well as having some overlap. We believe having 2 full time members of staff along with a volunteer complement, is ample cover (to) ensure Sunday trading is maintained so this point is upheld.”

The above appears to require the shop manager to work on Sunday which he states is not a term of his contract. While the charity states the request is about managing Sunday opening it would appear that it also requires the shop manager to work some Sunday shifts for it to work successfully.   Neither party presented documentary evidence to support their contrasting views on the contractual obligation to work on Sunday. Verbal claims were made about the claimant agreeing at interview to work 7 days, while the claimant said that he the expressly stated he would not work on Sunday’s at the interview.

The charity states that the shop has traded to date successfully on Sunday since the manager’s contract was terminated. There is a clear dissonance between the complainant’s account and the charity’s. The charity state they did not require him to work on Sunday but did require that the he manage and plan to ensure that the shop was trading on Sunday. The charity states there was no personal animus between the complainant and his manager, who was simply attempting to optimise trading for the charity.

The charity states that it dismissed for failure to carry out a reasonable instruction. There would appear to be conduct issues relating to performance of the goal of a store manager and it is also argued an underlying pattern of resistance to Sunday trading. It is argued by the complainant that the decision to dismiss on balance was harsh having regard to the complainant’s service, the fact he opened for Christmas Sunday trading, he attempted to recruit for Sunday trading and there were alternatives to redeploy to a shop that didn’t trade on Sundays. Escalation of a sanction should be progressive particularly where a goal or a task is not being performed adequately. Both parties accept that the task was to manage and plan for Sunday opening. The complainant states he tried to complete this task but was not very successful at doing so within the short time frame expected. He believes that the disciplinary process was initiated too quickly having regard to the objective reasons of difficulty to recruit volunteers. The charity sees this failure as an act of insubordination and a failure to carry out a reasonable instruction.

Having regard to the contention between the parties relating to the obligation to work on Sunday, it is clear that where a shop manager doesn’t work on Sunday, shift cover is made more difficult. There is a difference between a refusal to carry out a reasonable instruction and performing a duty poorly. On the facts of this case evidence appears to show that there is not an unwillingness to open on Sunday; however, there are structural limitations on its overall effectiveness when one employee in a shop doesn’t work on Sunday. That means clarity and determination of the obligation to work or not to work based on contract obligations becomes an important factor, without prejudice, to the ultimate determination of that matter. Classifying the wrongdoing as serious misconduct and finding that two instances of such conduct amounts to gross misconduct in these circumstances is questionable. The test is proportionality having regard to the alleged wrongs’; in such circumstances is the sanction reasonable? On the facts of this case, I determine that it was not a proportionate sanction.

I am minded of the arguments relating to the band of reasonableness and have fully taken those arguments into account. The circumstances of this case based on the ‘Reasonable Employer Test’ as set out in Looney & Co. Ltd v Looney, UD 843/1984 are required to be applied.   On balance I have found applying the reasonable employer test, having regard to all the circumstances that the procedures applied were unfair and the ultimate sanction to dismiss too harsh, I determine that the complainant was unfairly dismissed.

This requires consideration of the appropriate redress having regard to the circumstance of this case. I have concluded that on balance that the claimant’s conduct by his omission, to a degree, was found wanting by failing to ensure that the shop traded on Sunday even allowing for the difficulties to recruit. The facts are that this issue had been a live issue for more than a year, which is adequate time to plan for Sunday opening. The contract term relating to Sunday working is clearly a difference between the parties and it would be reasonable that through the proper industrial relations procedures that both parties ought to have addressed that difference in interpretation. The failure of both parties to do so, has contributed to the current situation and escalation.

I am obligated to consider the redress remedies as detailed in the Act and also I have considered what the claimant has sought. I have also taken into account the fact that the claimant has worked for only a very brief period since his employment was terminated and the claimant’s obligation to mitigate his financial loss.

The redress of re-instatement, having regard to the claimant’s own failings relating to planning and managing to ensure that the shop traded on Sunday, is not on balance an appropriate redress. The complainant remains unemployed; I believe that compensation is not the proper remedy based on the facts of the case having regard to the charity’s failures both relating to the disciplinary process and the sanction itself was excessive having regard to the principle of proportionality. Having regard to all the circumstances, I find that he should be re-engaged effective the date of this determination and that his service and all contractual terms and statutory rights are to be uneffected by the termination. The period where he was unpaid is to be treated as leave without pay; however, the payments made on termination, are not to be repaid and should be treated as normal paid remuneration.

Fair procedures-Proportionality-Sunday Trading-Reasonable Instruction-Retail-Shop Manager