ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Parties |
| Complainant | Respondent |
Anonymised Parties | A Security/IT Engineer | A Security Company |
Representatives | Self-Represented |
Complaint(s):
Complaint/Dispute Reference No. | Date of Receipt | |
CA-00024024-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issue in contention is an alleged Unfair Dismissal of the Complainant, a Security/IT Engineer by the Respondent Security Company. |
1: Summary of Complainant’s Case:
A written document and extensive Verbal evidence were provided. The Complainant commenced employment in October 2016 -having been a Contractor beforehand. There were certain difficulties over the rate of pay promised and the Complainant felt disappointed that the rate offered at the end of 2017 was less than what he had hoped for. Issues began to arise with his immediate Manager, called here Mr. Xa, over alleged work delays and the very large volumes of work being assigned to the Complainant. The 11-hour work /rest rule was basically ignored. The relationship with Mr. Xa went downhill quite seriously. The Complainant requested meetings with Mr. Xa, HR and the overall Manger, Mr. Xb, to seek a resolution. On the 19th October 2018 a meeting took place but instead of trying to resolve issues it became a very one-sided attack on the Complainant. It got quite heated and an issue arose over the placing of an Employee Handbook forcibly on the table during the meeting. The Complainant had also raised a most serious issue of alleged manipulation of records regarding client calls. This was ignored. Arising from the meeting of the 19th October a Disciplinary meeting was held on the 31st October 2018. It was a complete set up and all-natural justice was denied. An Appeal Hearing on the 21st November was equally unfair to the Complainant -he did not have time to get proper representation and the questions were designed to trap him. In summary he was bullied by Mr. Xa and the meetings on the 19th October with Mr.Xb , the Disciplinary meeting of the 31st October and the Appeal Hearing on the 21st November 2018 were a cleverly orchestrated unfair process to lead to his Dismissal. |
2: Summary of Respondent’s Case:
The Respondent made written and extensive Oral Submissions. The Respondent is a specialist Security and IT Company. The Complainant was called to a meeting on the 19th October 2018 to address a number of concerns that the Respondent and indeed the Complainant had in relation to work issues. Mr. Xb, the Service Director, took the lead and it was primarily to sort out what ever differences were arising between Mr. Xa, the immediate manager/supervisor and the Complainant. It was most definitely not a Disciplinary meeting. The Complainant was a good worker and there was no desire to have him leave the business. The meeting became somewhat wide ranging and a serious allegation was made by the Complainant regarding him being asked, by Mr. Xa, to improperly complete security hardware jobs and falsify records. Questions of evidence were raised by Mr. Xb as the nature of the Company Business depended on absolute Client trust. The allegation was extremely serious and could be very damaging to the specialised nature of the Company Security business not to say the good name and professional reputation of Mr.Xa. The Complainant could not produce satisfactory evidence to substantiate these allegations. The Respondent had investigated one of the alleged missed/improperly closed calls and could find nothing of substance. Matters got quite heated. The Complainant ended the meeting by forcibly flinging the Employee Handbook at Mr. Xa and effectively storming out of the room. His attitude had become extremely aggressive towards Mr. Xa and indeed to the Management in general. Following this meeting he was placed on Suspension and called to a Formal Disciplinary meeting on the 31st October. Four allegations were put to the Complainant and all rules of Natural Justice were followed. The Outcome was a Dismissal, The Appeal Hearing on the 19th November by the Group MD, based normally in the UK, was detailed and comprehensive. The Dismissal decision was upheld. The Appeal decision maker, in his oral evidence, indicated that he had considered a lesser sanction but the behaviour of the Complainant during the meeting of the 19th October was completely at variance with all Company standards, values and behaviours. In this situation Dismissal was regrettably the only option available.
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3: Findings and Conclusions:
3:1 The Law – The Unfair Dismissal Act, 1977; SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures and the Precepts of Natural Justice. The issue of Proportionality and the Band of Reasonableness in Employer decisions. Statute Law in the UD Act of 1977 Section 6 states and attention is drawn to sub section b below. (4) 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: ( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, ( b) the conduct of the employee, ( c) the redundancy of the employee, and ( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
Accordingly, dismissal for misconduct is therefore possible.
However, a key legal issue then arises as to the fairness of procedures and whether the rights of the employee were respected in keeping with Natural Justice. In Frizelle v New Ross Credit Union Ltd, [1997] IEHC137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters 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 inference 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 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.”
SI 146 of 2000 – Statutory code of Conduct on Grievance and Disciplinary Issues effectively translates Mr. Justice Flood’s observations into common practice. Accordingly, having reviewed all the evidence, the extensive paperwork and meeting minutes supplied I came to the view that the Procedures followed had been proper and in keeping with Natural Justice. The question them moved to the issue of Proportionality and the “Band of Reasonableness” of the Respondent Employer decision. 3:2 The Role of the Adjudicator; The Band of Reasonableness and the issue of Proportionality. There is extensive legal Authority regarding the Principle that the Tribunal or the Adjudicator is not to substitute themselves for the Employer and effectively engage in a de facto rerunning of a Disciplinary case. The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445 “It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295: “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.” The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length. Considering the Penalty of Dismissal imposed when seen against the charges made against him I had to have regard to the principles of “reasonableness”. It is not for the Adjudicator to revisit the Penalty but rather to see if it falls within the “band of reasonableness.”. This was first set out in the headline case British Leyland UK Ltd v Swift [1981] IRLR 91. This case has been followed closely in subsequent case law. In essence it made the point that if a Dismissal decision is “Reasonable” and one which an employer in a similar situation might take then it is deemed to be fair provided of course that all requirements of Natural Justice have been observed. In Allied Irish Banks plc v Purcell [2012] ELR 189 Judge Linnane stated that “It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken.” Guidelines as to what is “Reasonable” is considered in Hennessy v Read & Write Shop Ltd UD 192/1978 where it is stated “in deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to 1: The nature and extent of the enquiry carried out by the Respondent prior to the decision to dismiss the claimant, and 2: The conclusion arrived at by the Respondent that, on the basis of the information resulting from such an enquiry, the claimant should be dismissed.
3:3 Conclusions from the evidence both Oral and Written A number of conclusions have to be drawn. Firstly, there was a full Investigation and a proper Disciplinary Process. There were no obvious procedural flaws in the process. The four “charges” made in the Disciplinary Hearing on the 19th October 2018 essentially resolved around the behaviour of the Complainant at the meeting on the 19th October 2018. Extensive Oral evidence was given in relation to this meeting both by the Complainant and the Chairing manager Mr.XB. There was no doubt that issues had got heated. From the Oral Evidence I had to come to the view that most of the fuel was put on the fire by the Complainant. There was no doubting but that the Employee Handbook had been hurled across the table but on examination of the relevant Document, a large A4 booklet with a soft cover, it did not strike me as a particularly weighty document. From the Oral evidence it was clear that the Complainant had issues with Manger Xa for some time and had raised the spectre of his being bullied. Manager Xb’s intention in regard to the meeting of the 19th October, to clear the air, had been reasonable. His oral evidence was clear and credible on this point. My conclusion was that the meeting of the 19th October had been well intentioned, but the unexpected outcome had exacerbated relationship matters. Following on to the Disciplinary and Appeal Hearings I have to quote Mr. Justice Flood (Frizelle v New Ross Credit Union Ltd, [1997] IEHC137) above 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.”
The proportionality of a Dismissal for a Heated Meeting and the flinging of a A4 Document was in my view very questionable. Other Sanctions were available and would seem better suited to the case. My overall conclusion was that a Dismissal from employment was a Disproportionate response to the situation and accordingly the Dismissal is Unfair. However, I also came to the view that the Complainant had contributed significantly to the Dismissal and in consideration of redress I will reflect this view.
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4: Decision:
4:1 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 Dismissal is found to be unfair on the grounds of Proportionality.
Act | Complaint/Dispute Reference No. | Summary Decision /Please refer to Section Three above for detailed reasoning. |
CA-00024024-001 | Dismissal is found to be Unfair on Grounds of Proportionality. A Final Award of €1,700 is made to the Complainant. The Complainant is deemed to have contributed 50% to the Dismissal. |
4:2 Redress
As the Complainant was only out of work for a period of six weeks before securing a slightly better paid position, in the same industry, the maximum compensation would be in that order. Re Engagement and Reinstatement were discussed but compensation was the option chosen.
However, having considered all the evidence presented and the contribution of the Complainant to the Dismissal (which I deemed to be of ther order of 50%) I award the sum of four weeks’ pay less 50% giving a final award of €1,700.
Taxation to be discussed with the Irish Revenue Commissioners.
Dated: 4th June 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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