Complainant

Respondent

Anonymised Parties

A Quality Assurance Specialist

An Engineering /Software Company

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00022735-001

22/10/2018

This case is taken as a claim for Unfair Dismissal under the Industrial Relations Act, 1969. The Claimant presented his own case and the Employer was represented by Shane O Gorman, IBEC Executive.

The Claimant worked as a Quality Assurance Specialist at the Employers business from 26 February 2018 to 3 October 2018. He made a claim of unfair dismissal under the Industrial Relations Act 1969. He found new work, which was more favourable to him from 7, January 2019. The Claimant took issue with the way his dismissal was carried out which had caused to feel ill-treated by his Employer.

The Claimant outlined that he had worked as a Contractor for another company, Company A, from July 2016. The Employer in this case, Company B, offered him a permanent position where he would continue to be based at Company A, but be paid by Company B. The Claimant described an uneventful probation period.

On 19 September 2018, Company B called a meeting of all Quality Assurance Staff to flag that Quality and Packaging staff were due to be grouped together. The Claimant interpreted this as a demotion and one which carried educed responsibility. The Employer hosted a meeting on 28 September, where an external facilitator was to host a trouble shooting approach “to help people adapt to this ongoing change and field any queries and questions about the packaging area”. The Claimant declined to meet as he had spent over 20 months thee previously and had no intention of going back to the area.

On 26 September, the claimant received a request to meet from Mr A, Company B representative on site and declined the request citing work pressures. Mr A persisted in his invitation to attend the meeting on September 28, but the claimant did not attend.

On 3 October 2018, just after breakfast at work, Mr A approached the claimant in the Foyer and instructed him to attend a meeting immediately. He was taken aback by the immediacy of the request which was at variance in how meetings were normally pursued. He attended the meeting with Mr A and the Company B Human Resource representative. He was given a letter raised by the Company Director of Human Resources which indicated that he had been found to be grossly insubordinate by his non-attendance at September 28 meeting. He was informed that he was to attend a meeting late that day with the Company Owner and another Director of the Company. This meeting lasted approximately 12 minutes and the claimant recalled that he told the Employer staff that he was being “intimidated”.

The Claimant became distressed and at 11 am he sent an email to Mr A and the Human Resource representative stating that a “meeting could be scheduled to talk things through” He did not receive a response to this.

A short time later, the claimant was approached by Mr A to attend an immediate in the public meeting area. He attended and met with Director of Human Resources and another Company Director. The Claimant was infirmed that he was being summarily dismissed at the request of the Owner of the company, required to forfeit his swipe card and leave the building. He was furnished with a letter to that effect and he complied, leaving the building in a distressed state.

The Claimant submitted that he had not been heard or participant in any disciplinary procedures. He had lost his permanent position in a short number of hours. He had sought to be heard but believed that he had not been heard by Company B.

The Claimant had intended on applying for a permanency advertised for Company A. He anticipated an interview for this on 18 October but received notification that the interview was not going to proceed.

In his analysis of the events presented, the claimant had a residual unease at the manner and method of his dismissal. He freely admitted that the position at Company B, while advertised as senior really wasn’t. Several his colleagues had left, which placed an additional pressure on him, as the only fully trained person.

He freely admitted that he wasn’t happy at the company and had sought out answers from Human sources in August, but these had not been followed up. He believed that his Professional Development needs had not been met. He did not equate having no interest in attending the 28th September meeting as being gross insubordination.

He recalled that his Health Insurance was promptly discontinued and disputed that he received his office contents.

Finally, he contended that he had not engaged in gross misconduct, disciplinary procedures or in an Appeal of his dismissal.

In answer to the Employee Representative questions, the claimant confirmed that he had been offered a Grade 3 position on commencement at Company B and he had completed Induction. He confirmed that he had read the company handbook and had skimmed through the Disciplinary procedure over the months preceding the hearing. In reviewing his late attendance during an external audit, he replied that he told his Manager that “I might and mightn’t attend “. He confirmed that he had lost interest in the proposed pathway carved out for him at the company and had just looked out for himself. He did not take kindly to “being kicked out the door like a dog “.

An issue arose at the end of the hearing that the company submitted that the complainant’s probation period had been extended to 26, November 2018.

When given a copy of this notification post hearing, the claimant disputed the integrity of the document, which he said was sent by someone he did not know with the purpose of him not actually seeing it. He submitted that it was sent to a Company B email address and not a company A address which he always used in bi lateral communication whilst at the company B.

The Employer operates a Europe wide Engineering /Software Development/ Project management with over 200 staff. Company A is a key client and Company B provides a range of services on the plant inclusive of manufacturing, packaging and distribution.

The Employer disputed that the claimant had been unfairly dismissed but rather that substantial grounds had accompanied his dismissal on October 3, 2018.

The Claimant in this case was hired to support the Manufacturing area in February ,2018. He was issued a contract of employment with a probationary period of 6 months.

The Claimant began to demonstrate signs of disengagement early in his employment, particularly in elation to his Team Leader, Ms TL. A series of 1:1 meeting was suggested to strengthen this key relationship. These were shunned by the claimant, who sought clarification on the suggested content and frequency of these meetings. The Claimant subsequently expressed reservations in Ms TLs lack of experience in the managerial role in or around May 2018. The Claimant was reassured by the Human resources manager that this was work in progress and she would check in on him to ensue “everything was ok”.

The Company had issues with the claimants intra colleague email communication in July 2018, for which the claimant agreed to offer an apology.

The Employer expressed a dissatisfaction with the claimant’s attendance pattern during a very important external audit which ran for a week on Company A site during the week of August 13. The Employee had anticipated a uniform 9 am start to support the audit, yet the claimant deviated from this daily. This matter was processed into an Investigation from which no action was taken.

Company A and B engaged in September 2018 and a decision taken to transfer the Quality assurance Specialists to Packaging rather than multiple business functions. This did not alter the job description but in the claimant’s case, it meant that he was expected to forfeit his Manufacturing role and condense to Packaging. Company b engaged a Facilitator to assist in the transition and to that end the QA Specialists were requested to attend a meeting scheduled for September 28. This was declined by the claimant, who also declined a direct engagement with his line manager on the topic of change.

This resulted in Mr A issuing a Directive in email format to instruct the claimant to attend the meeting on September 28.

“One thing I wanted to discuss was tomorrows Team building. Id rather not be talking about this on email …over a coffee would be better but if you ae up the walls busy today then, I have to let you know here now on mail that you are expected to attend on the Team building tomorrow …...please discuss any work conflicts with Ms TL today ….”

The claimant responded by declaring that he would not attend and emphasised that he had “zero interest” in the new proposed changes in the work processes. The Employer was troubled by the claimant’s lack of adherence to company procedures.

Mr A, the claimants line manager approached the claimant on the morning of October 3 and asked him to go forward to meet with the company CEO and another Senior Manager late that day to address the matter of his gross misconduct. He was given a letter to explain the next step in the process. Upon receiving the letter, the claimant refused to attend this meeting, calling it a waste of time and submitting that if he was required to travel off site, Company B should collect him in a taxi.

In the face of the refusal to attend the meeting, the Company Senior Manager and Human Resource representative attended Company B site at 12 noon. The claimant was informed of the decision to summarily dismiss him. He replied that the “company did not listen to him or hear him out “The Employer submitted that they had been left with no other option outside termination of employment.

The Complainant had refused to engage with management from his line manager up to the company CEO. This constituted the basis of the decision to terminate his employment, which was both fair and reasonable.

The Employer submitted that the success and failure of a business is dependent upon ensuring that employees are doing what is enquired of them and they ae complying with directions given to them by their employer. Employees have a duty to obey an employer’s direction, so long as they ae lawful and reasonable. The Employer contended that the requests made of the complainant were all reasonable but remained rejected.

The Employer referred to case law in Brewster v Burke and the Minister for Labour JISll98 and submitted that an employee repudiates a contract of service if he “ wilfully disobeys the lawful and reasonable instructions of his master “ The Employer cited a passage from Looney and Co ltd V Looney UD 843/1984 and directed the Adjudicator to take account of the precedent where the EAT set out the parameters of its role in a case of claim for unfair dismissal .

The Employer drew the attention of the hearing to the Claimants reaction to receiving his belongings from the company site. The belongings were returned with a note highlighting “Return to sender and no more correspondence.

The Employer did not interfere in the claimant’s application of wok at Company A and disputed his inferences in that regard. The Employer submitted that the claimant had not challenged the procedural fairness of his dismissal at any earlier period outside the WRC complaint form. The Employer argued that it was bound to discipline the claimant at the highest level as his behaviour warranted the approach.

In the latter stages of the hearing, the Employer confirmed that the claimant’s probation had been extended and undertook to forward the corresponding extract from the claimants file to attest this.

Statement of the CEO

The CEO addressed the hearing and detailed that the company was 21 years in formation. He disputed the claimant’s analysis of a vacuum in professional development and detailed the range of supports offered to employees over the years up to MBA level. The CEO submitted that he disputed the claimant’s assertions that Company B did not care about its employee and the company had received awards for being “best managed “

The CEO submitted that he found the circumstances presented by the claimant to be challenging but he felt that he managed it as best he could. When the claimant refused to attend the planned engagements, he was prompted to intervene. The process of disengagement had gone on for 7 months and a reasonable request to travel 6 miles to meet the owner of the company was justified. He was aware that the claimant’s probation period had been extended. He made the decision to dismiss the claimant mindful that the claimant’s disengagement was having a negative effect on the company. He was the sole decision maker.

I have considered both parties submissions, both oral and written in this case. This is a claim lodged as an Unfair Dismissal claim under the Industrial Relations Act 1969, as the claimant did not have the duration of service or special circumstances to justify a claim under the Unfair Dismissals Acts 1977-2015. During his presentation, the claimant made several references to his treatment at the cessation of his employment as being in contravention of employment law. I need to clarify matters before me.

This claim is being adjudicated under Section 13 of the Industrial Relations Act 1969, as it is being investigated as a Trade Dispute. It falls to me on completion of my investigation to make a recommendation to the parties to the dispute setting out my opinion on the merits of the dispute. Section 13 (a) and (b).

The Claimant was originally a Contractor in Company A. He liked his role and level of responsibility there but was keen to have some security of employment and was pleased to have secured a permanent contract of employment. He remained working on the same base, but reported to Company B. I have found that the claimant identified strongly with the ethos of Company A which was of a much larger scale than Company B. He confirmed that he retained his Company A email address on transition to Company B and he submitted that this was the reason that he had not been notified of the probation extension, which he says was sent to the wrong address. He was actively looking for direct employment with Company A at the time of the cessation of employment in this case. He had determined that his future lay there.

The Employer had made a commercial decision to directly hire Quality assurance specialists rather than retaining contractors and was excited at the prospect of the amalgamation of services during September 2018.

I note that I did not meet Mr A, Ms TL or the earlier Human Resource staff involved in the case.

During the claimants presentation , he focussed mainly on the events directly antecedent to his dismissal and while mentioned his growing unease at the company , it was clear to me that he had not reflected on his entire period of employment at Company B .He presented with a strong sense of self determination which was not matched by a corresponding awareness of the company priorities and just how he could have helped to advance these during the critical September, 2018 period.

I realise that it takes some time to adapt from a Contractor role to that of a direct employee, however, I would have expected a higher sense of empathy from the claimant in this regard. The Project was in embryonic stages and may have benefitted from his wisdom and experience. I have found that the claimant adopted a myopic approach to the proposed amalgamation of services and while I understand that his passion leaned more towards manufacturing than packaging, to absent himself completely from discussions was unwise and proved regrettably provocative.

This brings me to the procedural framework of the circumstances which led to the claimant’s dismissal. The Employer submitted a copy of the company B Disciplinary procedure and I have considered this. I noted the provision for activation of the Informal procedure at Section 8.4 which was meant to preface a formal disciplinary procedure.

I appreciate that this approach may have been intended in relation to the serial late attendance during the external audit, however, it was not recorded as such. I found this to be a missed opportunity in the Employer case.

SI 146/2000 outlines a Code of Practice to adopted in Disciplinary Procedures. The procedures must be rational and fair, the basis for disciplinary action is clear, the range of penalties that can be imposed is well defined and an internal appeal mechanism is available.

The Company procedures at 8.4.1 assures the reader that the company will ensue that a situation

“has been thoroughly investigated prior to taking the decision to invoke the disciplinary procedure” The Procedures also states that Gross Misconduct will result in the imitation of The Company B disciplinary procedures. The common denominator here and omitted significantly in this case is the central role of an investigation. In the letter of 3 October, the Employer alluded to a completed investigation, yet no documentation to corroborate this was submitted.

Company B clearly struggled to launch corporate goals in September 2018, while the claimant made it clear that he was putting his own interests’ first. This caused a significant chasm between the parties that proved unbridgeable, in my opinion. There was no visible management intervention post the September 27 Directive.

In everyday terms, the Employer asked to meet their employee in a facilitated setting to advance a corporate goal. This amounted to a reasonable request.

The Employer confirmed that 3 October 2018 was the next date on which the claimant was rostered post the Directive issued on September 27. The claimant was invited to meet the company CEO and a Senior manager. While the letter was worded very strongly, and Gross Misconduct was mentioned, I found the claimants reaction to the letter to be unusual, he did not seem to grasp the seriousness of the invitation to meet the CEO. He did not take steps to seek a representative and instead submitted that he sent an email to those who presented him with the letter saying he wished to discuss matters. I did not receive a copy of this email and he does not appear to have referred to it in the eventual discussion with the Senior manager at 2pm. I found that the Claimant showed a high level of disrespect towards his employer.

I asked the CEO where or when he believed the claimant got an opportunity to be heard during the termination of employment procedures? He answered very clearly and stated that he thought by his persistent refusal to attend meetings, the claimant did not want to be heard. I have reflected on this analysis.

I have found that this case evolved from an incomplete transition from Contractor to Direct Employee status. The Claimant did not identify with Company B and freely admitted that he was in waiting for transition back to Company A. While I appreciate that the Claimant believed that he worked hard while at Company B, he did not adjust to the added responsibility that comes with being a Direct employee.

I have found that the procedural framework felt far short of what is required under the common law of natural justice. The procedural framework in this case was poor and overly reliant on email communication. The Employers reference to an extended probation was not mirrored by a procedural record of engagement. Given the strength of concerns held by the Employer in relation to the claimant’s tendency to disengage from the outset, I would have expected a far more detailed log of interventions and planned targets for recovery.

I have not placed major weighting on the notification of probation extension for that reason. When I asked the claimant, he understood that there had not been any issues with his probation.

In LCR 21798, Beachside Company ltd V a Worker, a Section 20(1) referral to the Labour Court, the Court found distinct procedural omissions in a dismissal during probation:

“The Court has considered the submissions of both parties. The Court notes that the Claimant was furnished with a 36-month fixed term contract, which provided that “All dismissals will be carried out in accordance with the Provisions of Part Two of this Contract”. Part Two of the contract outlines the disciplinary procedures, which includes:- the carrying out a full investigation before dismissal; being informed of the reasons for the dismissal; the right to reply; the right to be accompanied at meetings and the right to appeal a decision to dismiss. Having considered the positions of both sides, the Court is of the view that the procedures adopted in the termination of the Claimant’s employment were seriously flawed. He was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000. Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.”

In this case, I have found that the claimant presented as a challenge to management from the outset. The Claimant demonstrated a lack of respect when he refused to engage with his employers. Having head from the senior management at the hearing, I must conclude that up to 10 am on October 3, 2018, they were prepared to engage with the claimant towards a resolution to the persistent disengagement. However, after this, the lines were drawn in the employment relationship and the dye of dismissal was cast and reflected in the letter received by the claimant at short notice at 12 noon.

I have found that the Employer treated the claimant unfairly and unreasonably on the following grounds. He was not notified that his dismissal was in active consideration, he was not given time to mount a defense, he was not provided with a completed investigation which warranted the activation of the Disciplinary procedure. The decision to dismiss was pre-determined. There were many other options open to the Employer before dismissal. The manner of the dismissal and its immediacy may have overwhelmed the claimant, who did not ask to remain at work. I believe the issue of persistent and enduring disregard for orders was elevated to a Political Dissension from which there was no return. I found the implementation of the decision to dismiss to be seriously short of best practice. I appreciate that conducting a dismissal must be difficult, however this dismissal was accompanied by an immediacy which intensified the resultant trauma.

I have not established that Company B negatively influenced the Claimant’s employment prospects at Company A.

However, it would be overly simplistic to apportion a full blame against the employer in this case. I must conclude that the claimant provoked several of the contentious actions which caused his dismissal and I would strongly urge him to reflect on his own role in his demise at the company. He is not blameless. The Claimant confirmed that he was aware of the Disciplinary procedures at the time of his dismissal. He did not action an appeal of his dismissal. I found this to be a stark fact and the ultimate testament to his view of the company, which he had already decided was not going to feature in his future. However, I am glad to hear that he has successfully relaunched his career in a very short time frame. That is commendable.

I have found merit in the dispute.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

It is clear to me that the parties will not work together again. Therefore, I find that compensation is the only practical remedy in the case. Given the major contribution on the claimant’s behalf into his own dismissal, I order compensation of €3,500 to be paid to the claimant in respect of the poor management of his dismissal, which was unfair, unreasonable and lacking in fair procedures.

I urge the Employer to review the Probation procedures currently utilised at the company to incorporate a module on adaptation from Contractor to Direct Employee status and to modify the internal communication system accordingly to strengthen identification with the company from Day One.

Dismissal under 1-year service.