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-00018560-001

17/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018560-002

17/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00018560-003

17/04/2018

The Complainant commenced employment with the Respondent on 01/10/2001 as a general operative in the Respondent’s food processing plant. On Friday 29th September 2017 the Complainant left work at 4.00pm. The scheduled work for the day had not been completed and this caused problems for the Respondent. When the Complainant returned to work on Monday 2nd October 2017 he was handed a letter placing him on a paid suspension pending the outcome of an investigation into his going home at 4.00pm the previous Friday.

After an investigation the Complainant was dismissed from employment om 27th October 2017.

A complaint was received by the Workplace Relations Commission on 17/04/2018.

MATERIAL FACTS.

1. On 29th September the Complainant left work at 4.00pm, he had been informed by his manager that work would finish that day at 4.00pm. On arriving to work on 2nd October the Complainant was issued with a letter informing him that he was suspended pending the outcome of an investigation.
2. A disciplinary procedure was initiated. The first instance hearing took place on 20th October 2017 and on 27th October 2017 the claimant received a letter of dismissal due to gross misconduct.
3. Ultimately, it was found that the claimant’s evidence was not credible, his actions with 12 other people amounted to informal industrial action, that he believed informing his supervisor that he was leaving work rather than requesting permission was appropriate and that the employee / employer relationship had broken down.
4. The Complainant did not utilise the internal appeals procedure. He was out of the country at this time and when he returned the time for requesting an appeal had elapsed.
5. On 2nd February 2018 the Complainant commenced employment with another food processing company and left that company to work for a security company.

LEGAL BASIS FOR CLAIM.

2.1 Relevant provisions of the Unfair Dismissals Act 1977 as amended

Section 1 of the Unfair Dismissals Act 1977 defines “industrial action” as:

2.1.1 lawful action taken by any number or body of employees acting in combination or under a common understanding, in consequence of a dispute, as a means of compelling their employers or any employee or body of employees, or to aid other employees in compelling their employer or any employee or body of employees, to accept or not to accept terms or conditions of or affecting employment.

2.1.2 Section 5 (2) of the 1997 Act provides

2) The dismissal of an employee for taking part in a strike or other industrial action shall be deemed for the purposes of this Act to be unfair dismissal if-

a) one or more employees of the same employer who took part in the strike or other industrial action were not dismissed for so taking part or

b) one or more of such employees who were dismissed for so taking part were subsequently permitted to resume their employment on terms and conditions at least as favourable to the employees as those specified in the said paragraph (a) or (b) and the employee was not.

2(a) without prejudice to the applicability of any of the provisions of section 6 to the case, where –

a)       An employee –

i)                    Is deemed by subsection (1) to have been dismissed by reason of a lockout, or

ii)                   Is dismissed for taking part in a strike or other industrial action,

And

b)      None of those who were locked out, or took part in the strike or industrial action, were re-engaged,

In determining whether, in those circumstances, the dismissal is an unfair dismissal, the adjudication offer or the Labour Court, as the case may be, shall have regard for that purpose only, to –

i)                    The reasonableness or otherwise of the conduct (whether by act or omission) of the employer or employee in relation to the dismissal,

ii)                   The extent (if any) of the compliance or failure to comply by the employer with the procedure referred to in section 14 (1).

iii)                 The extent (if any) of the compliance or failure to comply by the employer or the employee with provisions of any code of practice referred to in section 7 (2) (d) and

iv)                 Whether the parties have adhered to any agreed grievance procedures applicable to the employment in question at the time of the lock-out, strike or industrial action.

2.1.3 Section 6 (1) of the 1977 Act as amended provides that the onus is on an employer to demonstrate that a dismissal was fair: “ 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”.

2.1.4 Section 6(4) of the 1977 Act provides that: “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 …

2.1.5 The following subsections are of relevance in the determination of whether a dismissal was fair:

i)                    “(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

ii)                   (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –

iii)                 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 or with the provisions of any code of practice referred to in paragraph

(d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 92) of this Act”.

DISMISSAL AS A RESULT OF INDUSTRIAL ACTION

In Tuke v Coillte Teoranta (UD 443.97), Employment Appeals Tribunal, 27 February 1998 [1998] 9 E.L.R. 324, the claimants had not agreed to a collective agreement introducing a new scheme so were not paid additional sums in accordance with that agreement. The claimants felt they were being pressurised into accepting the new scheme and this led to industrial relations problems.   These problems were expressed in a dispute about what was known as “walking time”. It was customary for employees at a number of forests to report for work at a designated at 8 am on each working day. They would then drive their private cars onto the respondent’s property until they had reached a point as close to the area they were to work in that day as could be reached by car. They would then walk the rest of the way to their work area.   The time they spent travelling by car and on foot to their work area was known as “walking time” and this time was paid at 75 per cent productivity. As a means of protest, some of the claimants began to leave their cars at the designated point in Glendalough Forest at 8 am each day.   They would then walk the rest of the way to their work area. The result of this was that some of the claimants were claiming 2.5 hours “walking time” instead of the normal 15 minutes. This was entirely unacceptable to the respondent and several meetings were held at which the management insisted that the workers should return to the long-accepted practice.

Thirteen employees insisted on continuing their protest. Disciplinary procedures began against those thirteen involving warnings, suspension and ultimately dismissal. The stated grounds for dismissal were refusal to carry out reasonable instructions from the forest managers and failure to abide by well established procedures for processing grievances. The dismissal of two of these employees was revoked when they agreed to resume driving into the forest. The claimants brought an action against the respondent for unfair dismissal. The EAT made the following relevant determinations:

1)      even though the claimants’ actions were unreasonable they did constitute industrial action within the meaning of the Unfair Dismissals Act 1977

2)      The claimants were dismissed because of their industrial action.

3)      Two employees who took part in the industrial action had been allowed to resume their employment with the respondent while the claimants, who also took part, remained dismissed. Accordingly, section 5 (2) of the 1977 Act meant that the claimants had been unfairly dismissed.

4)      Reinstatement was not the appropriate form of redress because the claimants’ behaviour had been unreasonable and they were the authors of their own misfortune.

5)      The claimants were to be re-engaged.   Remuneration was not to commence until the date of the re-engagement and the respondent was not to be penalised with any claim for back pay.

PROCEDURAL FAIRNESS – THE PRINCIPLE OF PROPORTIONALITY

It is submitted that it is an axiomatic principle of Irish employment law that an employee enjoys a contractual and constitutional right to fair procedures. As Cox, Corbett & Ryan put it in para. 21.100:

--insomuch as this right will be most keenly enforced by the courts and the tribunal in circumstances where that employee faces the ultimate sanction of dismissal, a dismissal of an employee may be deemed to be unfair in circumstances where, even though there is no substantive difficulty with the dismissal (that is, where it is for one of the listed reasons contained in the Act for which a dismissal will be deemed fair) the manner in which the decision to dismiss was reached was somehow procedurally flawed. From an employer’s standpoint, therefore, it is vital that his or her business have in place a fair set of disciplinary rules and they be adhered to strictly.

In John v Rees [1969} 2 WLR 1294 at 1335 Megarry J. observed as follows (relied upon recently in the Irish Court of Appeal judgment of Shatter v Guerin [2016] IECA 318):

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious”, they may say, “why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start”.   Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them, has been made without their being afforded any opportunity to influence events.

3.4 At paras. 18-37, 38 Cox, Corbett & Ryan set out the following position in terms of the requirement of fair procedures in the context of workplace investigations into employee misconduct:

The courts have accepted that where an investigation involves the making of findings of fact then the rules of fair procedures apply to that investigation … The precise scope of what is necessary in order for an investigation to be “fair” will … vary from case to case, depending on what is at stake.   In other words, much less will be required of an investigation where an employee has demonstrably been guilty of persistent lateness, which may lead to a verbal warning, than will be required of an investigation into a complex factual situation at the end of which an employee may be suspended or even dismissed. Inevitably, however, and irrespective of the relevant offence or the degree of sanction that it may attract, there will be a need, however formally, to interview the employee concerned in order to assess his or her side of the matter (O’Sullivan v Mercy Hospital Cork Limited [2005] IEHC 170.

3.5 In A Crane Operator v A Port Company (ADJ-00007105) a decision of the WRC of 22 May 2018 the adjudication officer made clear that part of the assessment of fair and constitutional procedures was whether the sanction imposed was proportionate to the misconduct alleged:

The parties referred to Bigaignon v Powerteam Electrical Services Ltd (UD 939/2010) where the Employment Appeals Tribunal held: “The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate the dismissal will be rendered unfair.

The Tribunal notes that the claimant was fully aware that there was zero tolerance of drug use and had signed a document where this was clearly set out.   The Tribunal also notes that the claimant’s duties involved working on overhead power lines. This meant working at significant heights which was safety critical, even if the lines were not live.

The precise terms of the test to be applied as to whether the sanction was set out in Noritake (Ireland) Limited v Kenna UD 88/1983 where the Tribunal considered the matter in the light of three questions:

1. Did the company believe that the employee mis-conducted himself as alleged? If so,
2. Did the company have reasonable grounds to sustain that belief? If so,
3. Was the penalty of dismissal proportionate to the alleged misconduct?”

In Newbrook Nursing Home UC v Marites Roche (UDD 1834), a determination of 18 June 2018 the Labour Court awarded the claimant €10,000 for a procedurally unfair dismissal. The court relied on the following law in respect of the principle of proportionality in employment law:

The complainant’s case is that her dismissal was unfair as the process that led to the decision to dismiss her do not meet the standard for fair procedure set out in case laws.

In the case of Samuel J Firzelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1.       The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

2.       Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden interference or conclusion.

3.       The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.       The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5.       The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.

APPLICATION OF THE LAW TO THE FACTS

1. It is submitted that the claimant’s dismissal was unfair for the following reasons:

·         Even though the claimant’s actions were unreasonable they did constitute industrial action within the meaning of the Unfair Dismissals Act 1977.

·         The claimant was dismissed because of his industrial action.

·         Other employees who took part in the industrial action had been allowed to resume their employment with the respondent while the claimant, who also took part, remained dismissed. Accordingly, section 5 (2) of the 1977 Act means that the claimant has been unfairly dismissed.

·         The employer failed to take due consideration of the fact that the claimant had been employed for 16 years prior to his dismissal.

·         The employer failed to take into consideration the language difficulties of the claimant even with an interpreter, kin particular as regards the reliance placed on the distinction between “telling” his employer he was leaving and “asking” his employer for permission. Cultural differences were also not taken into account.

·         The decision to dismiss rather than suspend without pay for some time or require further training or other less extreme action was disproportionate in all the circumstances.

CONCLUSION

1. Pursuant to the provisions of s. 7 (1) of the Unfair Dismissals Act 1977, where there has been an unfair dismissal, the adjudication officer may award the applicant such redress as it “considers appropriate having regard to all of the circumstances”.
2. In determining the amount of compensation payable, s. 7 (2) of the 1977 Act prescribes certain matters to which the adjudication officer may have regard:

a)       The extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

b)      The extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

c)       The measures (if any) adopted by the employee, or as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

d)      The extent (if any) of the compliance or failure to comply by the employer, in relation ot the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved by the Minister,

e)      The extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

f)        The extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

1. The claimant submits that his dismissal was unfair in all the circumstances and that he is entitled to relief. He has mitigated his loss to the greatest extent possible.

BACKGROUND TO THE COMPLAINT

1. On 29th September 2017 the Claimant along with a number of colleagues left their workplace at approximately 4.00 pm without any authorisation and in spite of the fact that work was still ongoing. In this regard it should be noted that the operatives finish times at the Respondents plant vary based on the number of animals that need to be killed and the process in place is that each day the Production Manager posts a kill plan which sets out the number of animals which are to be killed and which therefore clarifies the finish time. On the date in question the Production Manager posted the kill plan which set out that there were to be 2,500 animals to be killed and that therefore there would be a finish time of 6pm.         During the course of the investigation and disciplinary hearings the Plaintiff acknowledged that he was aware of the content of the kill plan.
2. During the course of the investigation the Claimant attempted to justify his actions in leaving early on a number of grounds:

1.       It was alleged by the Complainant that he did not get any verbal instruction to stay. However, it was also accepted by the Complainant that he was aware of the content of the kill plan.

2.       During the course of the investigation the Complainant confirmed that he left work in protest at alleged issues he had with his pay and the manner in which work was being structured. Further in this regard, during the investigation the Complainant expressly set out that he would continue to finish work at 4.00pm every Friday regardless of the designated finish time.

DISCIPLINARY PROCEDURE

1. On foot of the above, the Respondent carried out an investigation in line with their disciplinary policy and the Claimant was placed on suspension during the course of the investigation.         The suspension in this regard was justified by virtue of the fact that the Respondent had to adhere to very strict rules regarding the handling and preparation of raw meat and an employee leaving their workstation jeopardises the Respondent’s ability to comply with same.

INVESTIGATION

1. The investigation as carried out by a member of the Group’s HR Management team. The Claimant met with the Investigator on 5th October 2017 and was allowed the opportunity to put forward his position.         Furthermore, the Claimant was afforded the opportunity to bring a representative with him to the aforementioned meeting. In addition, all other relevant individuals were interviewed during the course of the investigation. At the conclusion of the investigation, it was found that there was a case to answer and therefore this matter proceeded to the disciplinary stage.

DISCIPLINARY STAGE

1. Throughout the disciplinary stage, the Claimant was again allowed his full rights to natural justice and fair procedures.         As you will see, all documentation regarding disciplinary stage is attached. It is clear from same that the Respondent adhered to the rules of natural justice and fair procedures and further that they complied with the provisions of its own policies and indeed the provisions of Statutory Instrument 146 of 2000.

After considering all matters, it was decided by Mr SM, the person in charge with the disciplinary stage, that the Claimant’s conduct constituted gross misconduct and that in the circumstances the only appropriate action was dismissal. Accordingly, and by way of letter dated 27th October 2017 the Claimant was dismissed from his employment.

The decision to dismiss the Claimant was made in circumstances where his actions (and indeed those of other employees involved) were of the most serious nature in that they put the Respondents ability to supply their customers in jeopardy and therefore put the jobs of 500 employees employed by the Respondent in jeopardy. In addition, a serious animal welfare issue was created in that the animals which were not killed because of actions of Claimant (and other employees) had to be held over the weekend. Furthermore, a particular concern from the Respondent perspective was the fact that the Complainant expressly set out that during the investigation hearing that he would continue to leave at 4.00pm on Fridays regardless of designated finish times. Given the seriousness of this matter from the Respondents perspective the foregoing was most concerning and further showed a lack of remorse on the Complainants behalf which was worrying.

In accordance with the Respondents disciplinary policy and indeed best practice, a right of appeal was furnished. The Complainant availed of the forgoing and an appeal hearing was held on 15th November 2017. The Complainant was represented at the Appeal hearing by his solicitor. After consideration of all matters raised at the appeal hearing the decision to uphold the decision to dismiss was reached.

Following on from the above, it is clear that the disciplinary process which was initiated was carried out in line with best practice and that the Claimant was afforded his full rights to natural justice and fair procedures. In particular it is clear that the Respondent acted in a reasonable manner in that it complied with the provisions of its own policies and indeed the provisions of Statutory Instrument 146 of 2000.

PROPORTIONALITY OF DECISION

1. In the first instance, we submit that it is clear from all of the above that the Claimant’s behaviour was of such a nature that warranted dismissal in the first instance. The case of Pacelli v Irish Distillers Ltd (UD 2006/417) is of relevance in this regard as it set out therein that the determination of what constitutes gross misconduct rests with the employer. In the aforementioned case, it was also stated that the test to be applied to the actions of an employer when faced with misconduct was what a reasonable, prudent and wise employer would do in the circumstances. In the case at hand and given all of the circumstances, as set out above, it is apparent that the Respondent were correct in classifying the Claimant’s behaviour as amounting to gross misconduct and further we submit that any reasonable, prudent and wise employer would have taken similar action as that taken by the Respondent when faced with behaviour such s that committed by the Claimant. This is particularly so given the nature of the Respondent’s business and the very strict timelines and rules which they must adhere to. Furthermore, and as referred to above, the Claimants actions had serious implications for the Respondent’s business and indeed from an animal welfare perspective. Given the Claimant’s service he would have been aware of the consequences of his actions. Furthermore, the fact is that the Claimant flagrantly refused an instruction to return to work from the Production Manager who met him as he was leaving work early. In other words, he knowingly and wilfully disobeyed a reasonable instruction from his manager.

Following on from the above, it must be considered that it has long since been held by the High court, as far back as 1978 in the case of Brewster v Burke, unreported, HC, 1978 “that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his masters.   Such a refusal justifies an employer in dismissing the employee summarily”. Further, in the case of McKenna v Farrell Brothers [1991] ELR 77 an employee, who had been requested to work overtime and refused, despite the requirement for same in the contract of employment, was dismissed and on foot of this, the dismissal was found to be fair as the Claimant was in breach of his contract of employment.

An important point to note is that the Respondent’s Disciplinary Policy specifically set out that “refusal to obey a lawful management instruction” and “initiating or participating in any form of industrial action” would be considered an issue of gross misconduct. Therefore, the Claimant was put on clear notice of the potential consequences of his actions in advance yet he proceeded with same.

We further submit that any reasonable employer would have reached a similar decision as that reached by the Respondent.   The case of Bigaignon v Power Team Electrical Services Ltd is of relevance in this regard in that in said case it stated as follows:

“The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? IN considering this question, the fact that the Tribunal itself would have taken a different view in a particular case is not relevant.   The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed law within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair”.

Therefore, in the present case it was for the Respondent to reasonably decide whether the Claimant’s actions warranted dismissal.   In this regard, it must be considered that the Claimant’s behaviour not only had an adverse effect on the operation of the plant but put in jeopardy the ability of the Respondent to supply its customers and thus put in jeopardy the jobs of all employees.   The Respondent has an obligation to make sure that all its employees work within the terms of their contract and complete the works that they are tasked with.   With this in mind, the penalty imposed upon the Claimant was proportionate to his actions and in full compliance with the Respondent’s Disciplinary policy.

PURPORTED CLAIM THAT CLAIMANT’S ACTIONS AMOUNTED TO INDUSTRIAL ACTION

1. In his submission, the Claimant has somewhat surprisingly sought to rely upon the provisions of Section 5 (2) of the Unfair Dismissals Act 1977. In essence, it appears to be the case that the Claimant is now arguing that his actions amounted to “industrial action” as defined in Section 1 of the Unfair Dismissals Act 1977.
2. It is our submission that the Claimant’s arguments in this regard are entirely without merit for a number of reasons:

·         The argument from the Claimant that his actions amounted to “industrial Action” is a departure from the position he adopted throughout the investigation, disciplinary and appeal hearings. As set out above, it was the Claimant’s position that he left work due to alleged confusion over finish times/having to attend an appointment with his wife.   There was reference to dissatisfaction with pay but in the circumstances to now retrospectively argue that his actions amounted to some form of “industrial action” is unusual and is an argument without merit.

·         Furthermore, the fact of the matter is that the Claimant’s actions did not in any event come within the definition of “industrial action” as set out above and thus his argument is misguided. It is explicitly clear from the aforementioned definition that it is a prerequisite that any action taken must be a “lawful action”. We submit that notwithstanding and without prejudice to the issues raised at point number one above, that the Claimant’s actions were not lawful and that therefore there is no merit in the argument which is being made in this regard.

·         In the first instance, it is abundantly clear that the Claimant’s actions amounted to a clear breach of contract and thus on basic principles, such actions cannot be lawful. In this regard, we refer to the Respondent’s disciplinary policy and grievance policy which make it clear that the Claimant’s actions amounted to a breach of contract. The Respondent’s grievance policy sets out explicitly the process that is to be followed if an employee has a grievance. The aforementioned policy sets out that no industrial action can legally be taken until such time as the procedure as is set out is followed.

·         Following on from the above, the provisions of the Industrial Relations Act 1990 must be considered. Firstly, Section 9 of the aforementioned Act sets out that the protections provided in that Act for actions taken in furtherance of industrial action only apply to authorised Trade Unions and also only apply where internal procedures have been resorted to and exhausted. In the within instance, there was no involvement of an authorised Trade Union and further there was a clear and blatant refusal to invoke the provisions of the Respondent’s grievance procedure. Therefore, the Claimant’s actions were not lawful and to hold otherwise would circumvent the statutory provisions and protections as set out in the Industrial Relations Act 1990.

1. Finally, and without prejudice to all of the above, the provisions of Section 5 (2) of the Unfair Dismissals Act 1977 are only applicable in an instance where there has been selective dismissals of employees following participation in a strike or other industrial action. In the within case and without prejudice to our position regarding the necessity for industrial action to be lawful, the fact is that the Respondent was not selective in that all employees who were involved in the purported industrial action were dismissed. Therefore, there is no basis for the argument which is being put forward by the Claimant in this regard.

CLAIM UNDER TERMS OF EMPLOYMENT (INFORMATION) ACT 1994

In this regard, the Claimant has set out the basis of his claim as follows –

“Terms of my contract were changed without consent and/or agreement”

The Respondent is a stranger as to what is being alleged in this regard. As you will see from the Contract attached, the Respondent has complied with the provisions of Terms of Employment Information Act 1994.

CLAIM UNDER PAYMENT OF WAGES ACT 1991

In this regard, the Claimant has set out the basis of his claim as follows –

“My payscale was changed temporarily a few years ago with a promised review but that temporary change was never reversed nor reviewed”.

The Respondent is a stranger as to what is being alleged in this regard and we submit that the Claimant has not properly set out his claim.

There is much to be considered in this complaint. I have taken the following factors into consideration in coming to a conclusion.

29th September 2017.

It would appear that the operation was not running smoothly on this date. The “line” was stopped on more than one occasion due to the non-availability of star bars and had to be slowed due to what is being referred to as dirty sheep. On top of these two factors there appears to be uncertainty as to what the kill target was for that day. The Abattoir Manager during his interview with the investigator stated the target was 2,800 animals to be killed, the Operations Manager states the kill target was 2,800/2,900 and at hearing the target was stated at 2,500.

For operatives on a piece work rate such delays mean a longer working day and/or reduced income and this appears to have been a problem for all operatives at that time.

In reading the investigation reports one manager, the General Manager, states that when he went to the abattoir yard at approximately 4.15 pm everyone was standing around and no one seemed to know what was happening. To a great extent this was the problem, no one, including management, appeared to know what was happening and what had to be done. In the investigation interview summary with the Abattoir Manager he is described as being “in a state of panic” and also “there were people coming to the Abattoir Managers office frantically as there were major problems”.

Working Time.

At point 1 of the Respondent’s submission there is mention of the fact that the Complainant commenced employment on 01/10/2001 and reference is made to the contract of employment issued to the Complainant. On reading though this contract and specifically the section on hours of work I note that this reads as follows:

“Your hours of work will be flexible to meet the requirements of the job, Monday to Friday inclusive. Permission to leave the premises during working hours must be obtained from your manager, otherwise the absence is deemed unauthorised”.

The section on pay reads:

“you will be paid a rate of £53.66 per 8-hour day and £10.06 for each hour overtime, this will be paid weekly in arrears by cheque”.

Contained within the documents presented by the Complainant’s representative were documents showing clocked hours for the Complainant during the week in question. This document also shows that the rostered hours for the week in question were 39 hours and that work time for the day in question was from 0730 to 1500.

The Investigation.

The Complainant was aware that there were problems on the line on the day in question, these problems were being caused by a shortage of star bars and dirty sheep, the line had to be stopped on at least two occasions.

It was alleged by the Complainant that no one informed him he would have to stay working after 4.00pm.

Later and also during the investigation it was claimed that there had been problems with dirty sheep on the Monday and Wednesday of that week and that generally there was a level of discontentment with this and a feeling that being on a piece rate system would result in lower wages.

The Complainant eventually accepted that the problem had been the entire week and that is why he had left at 4.00pm on Friday.The Complainant also alleges that when he was leaving at 4.00pm the Abattoir Manager informed him that work would continue until 6.00pm.

There is a report from the HR Manager who conducted the investigation. In the summary of witness evidence, she summarises the evidence taken from three managers who were interviewed, these were the Operations Manager, the General Manager and the Abattoir Manager. At the hearing this lady gave evidence and quite clearly stated that she had not discussed the issues with anyone prior to completing her report. To summarise the evidence from the Abattoir Manager she would have had to discuss this with someone as she was not the one to interview the Abattoir Manager.

The Disciplinary Hearing.

From the minutes of the Disciplinary Hearing I note the following :

The Complainant consistently maintained that he was informed by his manager that work would finish at 4.00pm, it was only as he was leaving at this time that he was informed that work was continuing until 6.00pm.

Again, the subject of star bars was raised as being a major problem.

On 27th October the Complainant received a letter informing him that the Respondent was summarily dismissing him for gross misconduct.

In accordance with the Respondents disciplinary policy and indeed best practice, a right of appeal was furnished. The Complainant availed of the forgoing and an appeal hearing was held on 15th November 2017. The Complainant was represented at the Appeal hearing by his solicitor. After consideration of all matters raised at the appeal hearing the decision to uphold the decision to dismiss was reached.

Conclusion.

This was no unofficial industrial action. Throughout the Disciplinary process there was nothing to suggest it was industrial action.

The Complainant was dismissed for abandonment of his duties and withdrawing his services from the Respondent company, refusing to follow a lawful management instruction, leaving his position without authorisation to do so and finally frustration of contract.

At the hearing it was established that this was not frustration of contract. In relation to refusing to follow a lawful management instruction the law under the Organisation of Working Time Act provides at section 17 (1) that …… “ the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week”. Management cannot choose to ignore this piece of legislation and then accuse the Complainant of refusing to follow a lawful instruction.

I also have to consider the custom and practice of the operation and how this may or may not conflict with all employment legislation. The incident took place at the end of a week – could it be described as a failure to work overtime and not, as management describe, as an abandonment of duties?

No matter how we describe the Complainant’s actions on 29th September 2017 they are not, in my opinion, actions that warrant the summary dismissal of an employee with 16 years’ service with the Respondent.

The Complainant commenced employment with another company on 07/02/2018.

In relation to the other two complaints i.e.:

CA – 00018562 – 002 – complaint under section 6 of the Payment of Wages Act, 1991

I believe the change made to the payment structure was part of a Collective Agreement – this complaint therefore fails.

CA – 00018562 – 003 – complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The Complaint is out of time and therefore fails.

I find the complaint to be well found, the Complainant was unfairly dismissed.

I award the Complainant six weeks’ pay i.e.€2,524.86

This sum should be paid to the Complainant within 42 days from the date of this decision.

Unfair Dismissal.