Complainant

Respondent

Anonymised Parties

An Employee

An unlimited Company

Representatives

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-00019780-001

14/06/2018

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

CA-00019780-002

14/06/2018

The complainant was very unhappy about proposed changes to his terms and conditions of employment. He received a letter on the 17th November, 2017 setting out the changes and stating that they were to come into effect on the 27thNovember. On the 27th November he came into work but refused to work. He told is manager that he would continue to work but only on his old terms and conditions. He did not like the new terms. He accepts that the new terms had been passed by a majority but he didn’t like them. He couldn’t cope with the new regime. He hadn’t worked any days under the new regime and didn’t intent to stating “ I just didn’t like it”. The new terms and conditions meant that he would have to work on Saturdays, He couldn’t work on Saturdays. The complainant accepted that it would only be a few Saturdays when the respondent was very busy. He also accepted that the respondent said that they would do their best to facilitate him but that he may have to work the occasional one.

His second issue was that he could be forced, on any day or time to do overtime. He was not willing to do overtime.

He accepts that the issues were explained to him by the respondent. He accepts that he was afforded an interpreter at all meetings and a representative at the disciplinary meetings and that he was given a right of appeal but he did not avail of that.

In 2016, XXX acquired a 50% stake in the business of the Respondent. Following enactment of this joint venture, a review of the contractual arrangements with employees began to take place.

The Respondent began negotiations with the work force in relation to proposed changes to be made to their terms and conditions of employment. Following these discussions and negotiations, the Complainant forwarded correspondence to the Respondent stating that he was not happy with the proposed changes and wished to remain on his original contractual terms. Due to this, the Respondent’s representative’s engaged with the Complainant in individual meetings held in May, 2017. The Respondent conducted an 8 week trial of the proposed pay structure changes with all employees which completed on the 16th June 2017 and following this, a further meeting was had with employees on the 10th July 2017. The Complainant continued to resist the changes being proposed and he once again affirmed this by sending a further note to the Respondent on the 20th November 2017.

The Respondent had, however, issued notification to all employees on the 17th November 2017, stating that the changes to the pay structure, which had been discussed and trialled with the employees for the previous months, would now come into effect from the 27th November 2017. On the 27th November, the Complainant arrived at the Respondent’s premises and presented a letter stating his refusal to work.

The Complainant refused to commence his normal duties on the morning of the 27th November 2017 and he and a group of colleagues stated that their actions were a form of a “protest”. The Complainant went to the canteen and stated that he wished to speak to management about the new pay system. While waiting in the canteen, the Complainant and his colleagues were approached approximately 4 times by Mr.H Boning Hall Production Manager, who asked the Complainant and his colleagues to return to their work stations. Most of the Complainant’s colleagues duly returned to work, however, the Complainant and certain other employees, refused. The Complainant then left the Respondent’s premises without authorisation and in blatant breach of management orders to return to his duties.

On foot of this action, the Complainant was suspended with pay in order for the Respondent to be in a position to investigate the matter. Suspension in this regard, was necessary taking into account the Complainant’s refusal to work and in line with the “categories” of when suspensions are necessary, as laid down by Justice Noonan in the case of The Governor and the Company of Bank of Ireland v James Reilly (2015) IEHC 241. A letter was sent to the Complainant on the 27th November 2017, specifying the allegation made against him being:

1.            Refusing to carry out your normal duties

2.            Failing to follow Supervisor request.

This letter informed him that he was being suspended with pay and that he would be contacted regarding the investigation. He was encouraged to have representation at that investigation meeting. A further letter subsequently issued to the Complainant dated the 30th November 2018 informing him of the appointment of an investigator and that an interview with him was to take place on the 5th December 2017. Again, he was encouraged to have representation and was informed of the serious nature of the allegations that he faced. The meeting was later re scheduled to the 14th December 2017.

The Complainant attended the investigation meeting on the 14th December 2017 but declined to bring representation. He was, however, provided with translation services by the Respondent. At his interview, he acknowledged that he had refused to work on the morning of the 27th November 2017 and had ignored the request of management, on several occasions, to return to his work station. He further acknowledged that he had made the decision to walk off site without authorisation. As a result of this admission, the investigator found that there was a case to answer and referred the matter back to the Respondent.

Under cover of correspondence dated the 15th December 2017, the Complainant was invited to a disciplinary hearing scheduled for the 19th December 2017. In this letter, he was again informed of the serious nature of the allegations that he faced and advised on his rights to representation. The Complainant duly attended the disciplinary hearing on the 19th December and once again, declined to bring representation. At this hearing, the Complainant again admitted to the complaints made against him and stated that he was under stress and had huge emotions which he said lead to “stupid actions”.

By way of letter dated the 20th December 2017, the Complainant was summarily dismissed. He was informed that his actions on the 27th November 2017 amounted to gross misconduct and that the level of trust between employer and employee had broken down. He was given the opportunity to appeal this decision within 5 working days. The Complainant did not appeal the decision.

Legal Submission re Unfair Dismissal Claim

In the first instance, we submit that it is clear from all of the above that the Complainants 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 is 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 was correct in classifying the Complainants 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 as that committed by the Complainant.

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 Complainant was in breach of his contract of employment.

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 Complainant was afforded his full rights to natural justice and fair procedures. In particular, it is clear that the Respondent acted in a reasonable manner and that it complied with the provisions of it’s own policies and indeed the provisions of Statutory Instrument 146 of 2000. As alluded to above, of note is the fact that the Complainant did not fully avail of the rights afforded to him in this regard in that he did not utilise his right of appeal.

With regard the proportionality of the decision to dismiss the Complainant, we 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 is 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 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.”

Following on from the above, Lord Denning set down in British Leyland UK Ltd v Swift (1981 IRLR 91) that ‘if a reasonable employer might reasonably have dismissed...then the dismissal was fair. It must be remembered in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’. This approach was followed in the Circuit Court case of Allied Irish Banks Plc v Purcell by Judge Linnane.

Therefore, in the present case it was for the Respondent to reasonably decide whether the Complainant’s actions warranted dismissal. In this regard it must be considered that the Complainants behaviour not only had an adverse effect on the                operation of the plant but the attitude to management was unacceptable. The Respondent has an obligation to make sure that all its employees complete the works that they are tasked with. With this in mind, the penalty imposed upon the Complainant was proportionate to his actions and in full compliance with the Respondents Disciplinary Policy.

CA 19787- 001. Unfair Dismissals Act, 1977.

S6.—(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.

The respondent after a merger sought to amend/tidy up the entire workforce’s terms and condition of employment. There are union and non union employees working for the respondent. The respondent negotiated with both individually. It was agreed that the issue would be put to a ballot and if the majority voted in favour the terms would be implemented.

The respondent met with the union collectively and with the non- union employees individually. They held two ballots, one for the union members and an individual one for the non-union members. The majority of non -union employees voted in favour of the change. The union voted, after slight alternation in relation to working hours, in favour of the change. Following that the change was implemented. It is clear from the complainant’s evidence that he was not in favour of the change despite not having established what the change meant for him. He, and others embarked on what can only be described as a type of unofficial industrial action and refused to work.    

The complainant took issue with two of the proposed changes. He said that he couldn’t work on Saturdays. He seemed to ignore the respondent’s assurances that it would only be the occasional Saturday if at all that he would be required to work and that they would do their best to facilitate him. He also seemed to ignore the respondent when he was told that he would not have to do overtime. They specifically told him that he wouldn’t have to do it and the reasons why he couldn’t actually do it but it fell on deaf ears.

The complainant was dismissed by letter dated the 20th December, 2017. He was afforded the option of appealing the decision. He did not avail of that option. There is generally an obligation on employees to exhaust the internal process before taking the matter to an external body. The complainant failed in this regard.

The respondent submits that it is clear from the facts that the Claimants behaviour was of such a nature that warranted dismissal in the first instance. They rely on the case of Pacelli v Irish Distillers Ltd (UD 2006/417) . It is set out therein that the determination of what constitutes gross misconduct rests with the employer. 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.

The respondent also relied on the case of Brewster v Burke, unreported, HC, 1978, wherein it is stated “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.”

I find that the respondent’s procedures were thorough and fair and that the complainant was afforded the opportunity to state his case with the benefit of an interpreter and a representative on several occasions. I can find no breach of his right to fair procedures and natural justice. He refused to accept the assurances he was given by the respondent and refused to work. When given the option of appealing the decision, he declined to do so. In all of the circumstances, I find that the respondent was justified in dismissing the complainant.

The complaint fails.

CA 19787 – 002 Terms of Employment information Act, 1994.

Following on from negotiations with all staff and the passing of a ballot, on the 17th November he received a letter stating that the changes were coming into effect on the 27th November. On the 27th November, he refused to work.

Section 5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a)             1 month after the change takes effect.

I am satisfied that the respondent complied with its obligation pursuant to section 5 of the act when it sent the letter of the 17th November, 2017 to the complainant.

The complaint fails.