UDD195

Background

The Complainant commenced employment as a general operative with the Respondent in July 2006. In 2015 he was promoted to the role of quality controller. He worked a three-cycle shift on a five over seven-day roster. His employment ceased on the 6th December 2016. The Respondent’s position is that he was dismissed for misconduct. The fact of dismissal is not in dispute.

A case management conference was held by the Court to address a number of preliminary issues that arose in particular the fact that there was another case pending. It was accepted by the parties that loss arising from the dismissal was a feature of both claims and that this could lead to an issue estoppel arising at a later stage. However, both parties were happy to proceed with the Unfair Dismissal claim.

Respondent’s case

The Complainant and his wife work for the Respondent. From March 2015 the Complainant was permitted a special roster arrangement so that he could work opposite shifts to his wife to facilitate their child care arrangements. In July 2016 the Complainant was advised that going forward the Respondent would no longer be in a position to facilitate the special arrangement and that he would have to revert to the normal roster.

The Complainant was issued with a new roster on September 8th 2016, and his first day of this roster was the 11th September 2016 when he reported for duty at 10.00am. In or about two hours into his shift, the Complainant who was training in a colleague complained of hurting his back while lifting a box of apples from the top of a pallet. The Complainant filled in an incident report and went home. The Complainant was absent for the following six weeks. In line with the Respondent’s procedure the Health and Safety Manager Ms Salinger was asked to investigate the incident. Ms Salinger in her evidence to the Court set out her role and advised that she investigates the incident and not the employee. In carrying out her investigation Ms Salinger informed the Court that she had looked at CCTV footage of the incident and after the incident. That she had spoken to the Complainant’s line managers who had informed her of the change to his roster and the difficulties that presented for him for childcare. That she had decided to employ a private investigator who provided her with a report. That she had interviewed the Complainant’s work colleague and taken a statement and that she had gone to the locus of the incident and taken photo’s. Ms Salinger then drafted a report in which she stated that she had come to the conclusion that the incident as reported had not occurred. The report was submitted to HR however the documents that she had relied on were not all included as part of the report and Ms Salinger could not confirm which if any of those documents were given to the Complainant. In cross examination Ms Salinger confirmed that she had issued an email dated 14th September 2016 to HR recommending that the Complainant be referred to the Respondent’s doctor and indicating that she believed the injury to be a fabrication and recommending that he should not be paid. Ms Salinger confirmed that this email was sent prior to her interviewing the witness and that she had not spoken to the Complainant at all during her investigative process. Ms Salinger also confirmed that she was the note taker at the welfare meeting on the 4th October 2016.

The representative for the Respondent advised the Court that following the Complainant’s return to work he was invited to a formal investigative meeting. By letter dated 1st November 2016 headed “Re: Alleged dishonesty in relation to an accident report" the Complainant was invited to a formal investigation meeting with Mr Tomasz Shift Manager. The Court was informed that attached to the invitation to the meeting was the HR report, the Doctor’s report and the minutes of the welfare meeting. While Mr Tomasz had access to the CCTV clips in advance of the meeting the Complainant did not. Mr Tomasz was not available to give evidence to the Court. However, it was not disputed that the Complainant was not shown the CCTV footage during this part of the process.

In the report of the investigation Mr Tomasz sets out that he received a statement from the Complainant and the investigation report from Ms Sallinger Health and Safety Manager no mention is made of CCTV footage and or witness statements. It is clear from the report containing the outcome of his investigation that Mr Tomasz had viewed the CCTV footage and that he was relying on witness statements neither of which were provided to the Complainant.

In his conclusions Mr Tomasz states;

a) That it was coincidental that the Complainant had an accident on the day his roster changed in circumstances where he was unhappy about the roster.

b) That the Complainant was inconsistent in relation to whether he hurt his middle or lower back,

c) that he could be seen on CCTV walking freely after the incident and that two company doctors had certified him fit to work

The investigation concludes that the Complainant was dishonest in reporting an injury to his back as a result of an alleged accident at work and recommends that the matter be put forward for a disciplinary hearing.

A disciplinary hearing was scheduled for November 24th 2016 with Ms Ennis Operations Manager. In her evidence to the Court Ms Ennis confirmed that she received a pack from the HR department which contained the Health and Safety report, the Investigation report, the invitation to investigation, minutes of meetings and CCTV Footage. In the course of this meeting Ms Ennis became aware that the Complainant had not been given or shown the CCTV Footage. Ms Ennis adjourned the meeting to allow the Complainant review the CCTV footage. The meeting was re-convened on December 1st and the CCTV footage was played for the Complainant. The Complainant was asked for his comments on certain aspects of the footage in particular the apparent ease with which he could remove his coat. In her evidence to the Court Ms Ennis confirmed that she questioned the Complainant about his recent removal from the special roster and the impact on his childminding arrangements. It was Ms Ennis evidence that it was perfectly clear to her from the CCTV footage that the complainant “bent his back to fix his hair and to get into his car “and that he did not show discomfort. It was Ms Ennis evidence that the above facts combined with two occupational health reports led her to believe that the no incident occurred, and that the fabrication of the incident was manifested by the removal of the special roster. Under cross examination from the Complainant’s representative Ms Ennis stated that she did not know who the accuser was, that although she had relied on the health and safety report she did not have sight of the witness statements relied on in the report, nor the emails or photo’s that were relied on. Ms Ennis confirmed under cross examination that she alone had made the decision to dismiss and that she had written the dismissal letter. Ms Ennis confirmed that the written dismissal letter contained in the Respondent’s submission was the letter that she had written and issued. The Complainant’s representative showed Ms Ennis the letter of dismissal which the Complaint received which differed in a number of areas from the letter she confirmed she issued. In particular the dismissal was changed from ordinary dismissal to serious misconduct dismissal and the line indicating that he would be paid six weeks-notice pay was removed. Ms Ennis confirmed that she had written that letter and had printed it off and handed it to the Complainant. Ms Ennis reiterated that she had written the letter but that she had forgotten she did a second draft. Ms Ennis could not confirm which letter was done first nor could she confirm when and why the decision was made to change from ordinary dismissal to serious misconduct and to not pay notice pay in accordance with their policy. Ms Ennis re-iterated that she was the only person involved in making the decision to dismiss and drafting the letters. In relation to the CCTV footage Ms Ennis accepted under cross examination that it was not clear from the CCTV footage whether or not there had been an incident. Ms Ennis also confirmed that she was not aware that changes to the Complainant’s shifts had happened in mid-August and that shift clashes had occurred prior to the 11th September 2016. On questioning from the Court Ms Ennis could not identify what section of the Respondent’s disciplinary procedure she held the disciplinary meeting.

The Complainant appealed his dismissal by letter dated 7th December 2016. The appeal hearing took place on the 15th December 2016. The appeal was heard by Mr Des Ferris Technical Director. In his evidence to the Court Mr Ferris confirmed he received a pack from HR that included amongst other things the disciplinary report and the letter of dismissal. It was his evidence that they only issue the Complainant asked him to consider was that his version of events had not been given due consideration. It was Mr Ferris’s evidence that he felt the process was fair and in line with the Respondent’s process and he believed that the Complainant had been given a fair hearing. Under cross examination from the Complainant’s representative Mr Ferris confirmed that the was not aware of who the accuser, that he was not aware of what section of the Respondent’s disciplinary code the dismissal had taken place. When shown the first letter of dismissal Mr Ferris confirmed that was the dismissal letter that he saw as he recalled elements of the letter. When shown the second letter of dismissal Mr Ferris confirmed that was the dismissal letter he had seen while Mr Ferris confirmed that he had only seen one dismissal letter he could not clearly indicate which letter had been in the pack given to him. In response to a question from the Court in relation to the minutes of the appeal meeting Mr Ferris stated that he was only hearing an appeal on one issue the dismissal. When it was brought to his attention that the minutes reflected two issues and showed that he had engaged with both issues during the meeting he could not explain why that was.

The Respondent in their legal submission citied a number of cases in particular they argued that they had met the test set out in Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 in that fair procedure had been followed. It is their submission that their decision to dismiss met the test set out by the Employment Appeals Tribunal in Noritake (Ireland) Limited v Kenna UDD88/1983.

The Respondent submitted that the dismissal of the Complainant was fair and reasonable, and that proper procedure were followed throughout the process.

Complainant’s case

It is the Complainant’s case that he was unfairly dismissed in that he was not afforded fair procedures. On his return to work after the incident the Complainant was invited to a formal investigation under the company’s disciplinary procedure. At the time of the investigation the Complainant was not provided with or given access to the CCTV footage being relied on by the investigator. He was given a copy of the Health and Safety report which the investigator was relying on. The Complainant was not interviewed as part of the process that produced that report nor was he giving copies of documents relied on in that report. It is the Complainant’s contention that his special roster in relation to his family commitments had changed mid-august and that he had been working the normal roster since then. The Complainant disputes the finding of the Health and safety investigation that he did not hurt his back. The Complainant attended two occupational health Practitioners and submitted a report from his own GP.

The representative for the Complainant drew the Courts attention to the terms of reference of the Health and Safety Investigation and the statement by Ms Salinger in her evidence that she investigated the incident and not the person. The Complainants representative drew the Courts attention to correspondence from Ms Salinger to the HR department where in advance of having interviewed witnesses or completing her report she states “I believe this injury to be a fabrication …” she then went on to recommend that he not be paid. Ms Salinger in her report also comments on the Complainants rosters and relies on information from his line manager in relation to his dissatisfaction with the roster. Ms Salinger never interviewed the Complainant in relation to either the incident or his rosters. It is the Complainant’s case that Ms Salinger went beyond her stated terms of reference which was to investigate the incident and not the person and therefore her report was flawed and should not have been relied on.

In relation to the investigation as the Complainant was not given access to the documents underpinning Ms Salinger’s report or the CCTV footage relied on by the investigator he was not afforded fair procedure at this stage of the process. The flawed report was then relied on to instigate disciplinary proceedings. In relation to the invitation to attend a disciplinary hearing it was not stated under what section of the disciplinary code the hearing was being held and no indication was given that the issue under consideration was considered to be serious misconduct. While the Complainant was shown the CCTV footage at this stage the flawed health and safety report was still being relied on and Ms Ennis who carried out the disciplinary hearing was unable to confirm who his accuser was and under what stage of the disciplinary process she was holding the hearing.

The fact that Ms Ennis in evidence stated that she alone wrote the dismissal letters but could not remember why she had changed the dismissal from ordinary dismissal with six weeks salary to serious misconduct dismissal with no notice raises concerns about the credibility of her evidence. If the decision maker did not know why she had made that change then the Complainant could not have been informed that the charge against him was being changed to serious misconduct.

In relation to the Appeal heard by Mr Ferris this was just a final rubber stamping. Again, in evidence Mr Ferris confirmed he did not know what stage of the process he was hearing the appeal under. His evidence was that he was hearing one appeal, yet the minutes show he heard two appeals simultaneously.

The Complainants Representative citied a number of legal cases and in particular asserted that the tests in Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 and Noritake (Ireland) Limited v Kenna UDD88/1983 had not been met and therefore the dismissal must be found to be unfair. It was the Complainants position that he tried to mitigate his loss and some details relating to same were submitted.

The law

Section 1 of the Act defines dismissal in the following manner

1. “dismissal”, in relation to an employee, means—

• (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6(1) states

“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.”

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

The Complainant’s case is that his dismissal was unfair as the decision to dismiss him does not meet the standard for fair procedure set out in case law. The Respondent disputes that and argues that any errors in the process were minor and that there is no requirement for the process to be perfect.

The Court does not dispute the fact that the process does not have to be flawless however, in this case a number of issues have been highlighted which in the Court’s opinion go to the heart of the Complainant’s ability to answer the charge being laid against him. In particular, the failure to provide him with all documentation being relied on by the decision makers at the various stages of the process and the inclusion in the Health and safety incident report of issues relating to his roster without any engagement with him in relation to those issues. It is also of concern that neither the decision maker nor the appeal hearer knew what section of the Respondent’s policy they were operating under. Finally, the evidence of the decision maker in relation to what decision she came to, how she came to that decision and why she came to that decision was at best confused. In those circumstances the Court cannot see how this dismissal could be deemed to be fair.

Remedy

Section 7 of the Act states

• 7. (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

  (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

  (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

  (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

  (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The Court having considered the remedies available has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.

Having assessed all the information before it the Court considers that the Complainant has suffered financial loss as a result of the wrong he has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €10,000. The Court so determines.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €10,000. The decision of the Adjudication Officer is set aside. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
25th January, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.