Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Car Parts Company

Representatives

Mason Hayes & Curran Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00030836-001

11/09/2019

The complainant joined the respondent company as a warehouse operative on November 9th 2018. On August 23rd 2019, he was at work and using his mobile phone and he was asked to put in a locker. When he refused, an investigation ensued, followed by a disciplinary hearing on August 27th. At the disciplinary hearing, the complainant said that he needed to have his mobile phone at all times and he refused to agree to put it away during working hours. On August 28th, his employment was terminated for refusing to obey a reasonable instruction. His case is that his dismissal was unfair.

At the time of his dismissal, the complainant had not completed one year of service and he has therefore submitted this dispute under the Industrial Relations Act. On his complaint form, he indicated that he wants to be compensated. My task therefore, is consider his complaint and, if I find that his dismissal was unfair, to recommend an amount in compensation.

For the respondent, Ms O’Leary said that the complainant’s contract of employment provided that he was on probation for the first 11 months of his service and, at the time of his dismissal, he was on probation.

During his induction, the complainant was informed that the respondent has a mobile phone policy which states that the use of mobile phones during working hours is not permitted, except in cases of emergency. The policy further provides that,

“Colleagues found using their own private mobile devices for any reason during working hours, without line manager approval, will be subject to the disciplinary process.”

On Friday, August 23rd 2019, the complainant was using his mobile phone and he was asked to put it in a locker. He refused, explaining that his mother is a diabetic and is in and out of hospital and he needs to be contactable. The complainant’s line manager told him that it is the policy of the company that mobile phones are not to be used while working and he asked the complainant to put his phone away, but he refused.

Later that day, the complainant was called to a meeting at which he acknowledged that there was a policy in relation to the use of mobile phones and that he could have given his family his manager’s phone number in case he needed to be contacted.   He agreed that he had refused to put away his phone when he was asked to do so earlier in the day and he claimed, “this is like being at school.” He said that he would not leave his phone in a locker.

At a disciplinary meeting the following Tuesday, the complainant again said that he would not comply with the company’s policy on mobile phones and he that needed to have his phone with him at all times. Following the meeting, he was dismissed.

Ms O’Leary submitted that the company engaged in fair procedures throughout this process, carrying out a disciplinary investigation and a hearing and giving the complainant an opportunity to be represented. The complainant was faced with an allegation of refusing to follow a reasonable instruction, he had an opportunity to state his case and he had the right to appeal. He did not exercise that right.

It is the respondent’s view that the WRC is not the proper forum to deal with disputes where the complainant has not exhausted all the internal processes available to him and that the WRC is not a substitute for the internal processes. In this regard, Ms O’Leary referred to the Labour Court decision in the case of Gregory Geoghegan trading as TAPS v a WorkerINT1014, where the chairman stated,

“The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

On this basis, Ms O’Leary argued that this complaint should be dismissed.

At the hearing, the complainant said that on the day he was challenged by his manager about using his mobile phone, he refused. He said he had taken out his phone to see if he got a text message. He agreed that, at the disciplinary hearing, he said that he would not put his phone away while he was at work and he reiterated that the policy treated him as if he was at school.

When I asked the complainant why he did not use the opportunity to appeal against his dismissal before bringing this complaint, he said that he was very stressed because he had bills to pay and his mother was in hospital.

I find myself in agreement with the respondent regarding this dispute. The complainant could have appealed against the decision to dismiss him, as the opportunity to do so was clearly communicated to him in the letter of August 28th 2019, which confirmed his dismissal.   There was no ambiguity regarding this entitlement, but he decided not to avail of this right, explaining that he was stressed. I find that this explanation doesn’t stand up, because by September 11th, just two weeks following his dismissal, he was able to submit this complaint to the WRC.

Before he contacted the WRC, the complainant ought to have appealed against his dismissal directly with his employer. Taking my authority from the Labour Court, I find that I must not now insert myself into the process.

I recommend that the respondent takes no further action regarding this dispute.