ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014011
Parties:
| Complainant | Respondent |
Anonymised Parties | Printer | Pharma Print Packaging Company |
Representatives | Gerard Kennedy SIPTU | Emma Lavin |
Complaints:
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-00018426-001 | 10/04/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00018426-002 | 10/04/2018 |
Date of Adjudication Hearing: 24/10/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the UnfairDismissals Acts, 1977 – 2015 and Section 11 of the Minimum Notice & Terms of Employment Act 1973,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant contends that he was unfairly dismissed on a procedural and substantive basis, and that he was not provided with minimum notice entitlements. |
Summary of Respondent’s Case:
The Complainant was employed as a Printer from August 2013. During the course of his employment, he was subject to disciplinary sanctions on a number of occasions. In January 2017 he received a verbal warning regarding his absenteeism. In March 2017 the Complainant received a verbal warning regarding the quality of his work. In April 2017 he received a written warning regarding the quality of his work. In May 2017, the Complainant received a verbal warning in relation to breaches of the Respondent’s Notification for Non Attendance at Work Policy. The Complainant did not appeal any of those sanctions. Further performance issues relating to the quality of the Complainant’s work resulted in the termination of his employment on 21 August 2017. An appeal of the sanction resulted in it being overturned on a procedural basis and the Complainant was reinstated to his position and issued with a final written warning with effect from 11 August 2017. At the time of the Complainant’s misconduct in this case, the warnings from March 2017 onwards were active.
Following an incident on 11 December 2017. A report by the Finishing Manager P prompted an investigation into the following allegations against the Complainant:
- Eating chewing gum on the manufacturing floor
- Drinking cans of energy drink on the manufacturing floor
- Storing food and beverages on the manufacturing floor and compressor room
- Lateness to work
- Aggressive behaviour to Manager P
The Company has a Good Manufacturing Practices (GMP) procedures and Quality policy. The Company must adhere to Pharmaceutical Standard PS9000:2011. Poor GMP standards can lead to death or harm to patients, loss of business, loss of jobs and loss of Company reputation. Accordingly, the Respondent delivers GMP training to all staff on an annual basis and has a zero tolerance policy to food and drink in the production area. The Respondent has been consistent in its dealings with issues of this nature, and has previously dismissed a number of employees for breaches of its GMP policy.
In addition to the consumption and storage of food on the factory floor, the Complainant’s persistent lateness and failure to adhere to the Respondent Notification process for nan attendance at work has significant ramifications including being unable to partake in the shift handover, which is vital for the communication of important information.
The Complainant threatened a colleague and his family, behaviour which the Respondent considers to be very serious. It is contrary to the Company’s code of conduct which includes inter alia:
“Abusive behaviour and harassing or offensive conduct directed at an employee or a group of employees, is unacceptable, whether verbal or physical”.
The Complainant’s actions in threatening and acting aggressively towards his manager were deemed to be entirely unacceptable and the respondent cannot tolerate such behaviour in its workplace.
An investigation was undertaken by JC and the Complainant attended two meetings at which he was accompanied by his trade union representative. He was provided with the allegations and the statements of those interviewed as part of the investigation. The Complainant denied the allegations, with the exception of the persistent lateness. He stated that those interviewed regarding the other allegations were lying. The matter was progressed to the disciplinary stage which was conducted by Manager MF. The outcome of the disciplinary hearing was that the allegations were substantiated and that the Complainant’s behaviour constituted on-going and consistent breaches of the attendance at work policies, the GMP policies and the Code of Conduct policy, and that this behaviour amounted to gross misconduct. The Complainant was issued with a letter terminating his employment with reasons outlined. He was given the right to appeal within a certain date (29 March 20180, but an appeal was not submitted until 9 April 2018. The Complainant’s trade union representative was informed that as the date of appeal had passed, the Respondent considered the matter to be closed.
It is submitted that the Complainant was fairly dismissed for gross misconduct and as such was not entitled to notice.
Case law was submitted in support of the Respondent’s position in relation to the appropriate test for determining claims relating to gross misconduct (O’Riordan v Great Southern Hotels UD1469/2003) and the reasonableness argument (Looney & Co v Looney UD843/1984), an proportionality (Bank of Ireland v Reilly [2015] IEHC 241).
Summary of Complainant’s Case:
It is argued that the dismissal was unfair and the arguments are summarised as follows: The Complainant never received any initial report relating to the allegations against him. Attention is drawn to the law which governs the reasonableness or otherwise of the employer (Section 5 of the Unfair Dismissals (Amendment) Act 1993). Labour Court Determination UDD1738 is cited in relation to what constitutes gross misconduct, where it is stated that the established jurisprudence takes a very restricted view of what constitutes gross misconduct. It is argued that if the Complainant was so guilty, why did the Respondent allow the Complainant to remain at work. It is argued that at no stage of the proceedings was the Complainant told of the potential termination of his employment. He was not given the opportunity to cross examine witnesses who had made allegations, and he was refused the right of appeal. The letter informing him of the right to appeal was not received until 3 April 2018. |
Findings and Conclusions:
The Complainant was dismissed following a process which involved investigation and disciplinary meetings. There were two flaws in the procedure adopted. The Complainant was not given the opportunity to confront or question witnesses. He was also refused the right of appeal because his appeal was not lodged in time. These basic principles are contained in statutory instrument S.I. 146/2000 which provides a Code of Practice on Grievance and Disciplinary Procedures. The question then is were these flaws fatal to the Respondent’s case in the matter? Case law has established that consideration must be given against the facts what a reasonable employer would have done (Looney & Co v Looney UD843/1984). The test of reasonableness is set out in O’Riordan v Great Southern Hotels UD1469/2003, where the Tribunal found: “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”. From the evidence, I find that it was reasonable for the Respondent to believe that the Complainant’s behaviour constituted gross misconduct. I find that the flaws in the process are not fatal to the Respondent’s contention and I find that the dismissal was fair in all the circumstances. The Complainant’s claim of unfair dismissal is not upheld. The Complainant was dismissed for gross misconduct and the claim under the Minimum notice and Terms of employment Act 1973 is not upheld. |
Decision:
CA-00018426 – Unfair Dismissals Act 1977
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.
The Complainant’s claim of unfair dismissal is not upheld.
CA-00018426 – Minimum Notice and Terms of Employment Act 1973
The claim under the Minimum notice and Terms of employment Act 1973 is not upheld.