Complainant

Respondent

Anonymised Parties

A General Operative

A Manufacturing Company

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-00018235-001

29/03/2018

The Complainant commenced employment with the Respondent, a manufacturing company, on 5 April 2007, in the role of a general operative.

Following an incident in the factory on 9 February 2018, the Complainant’s employment was terminated by the Respondent.

On 29 March 2018 Complainant submitted a complaint of unfair dismissal to the Workplace Relations Commission.

Background to the complaint:

According to the Complainant’s submission, he commenced work on 9 February 2018, in the section of the Respondent’s plant where he was working at that time. The Complainant stated that when he came into work there were two employees already in attendance but there was initially no supervisor. The Complainant stated that he was tidying up with the supervisor arrived and told him to do a few different assembly jobs and, when finished, to commence work on some new prototype products, that had never been assembled before. According to the Complainant, the supervisor advised that he would return to ensure that the products were being assembled correctly.

The Complainant stated that he was preparing his workplace for assembling the products when he was approached by the HR and Operations Manager, Ms A, who queried where the products were for that day’s production. According to the Complainant’s submission, when he advised Ms A that he was unaware as to the whereabouts of the products, she aggressively accused him of not knowing what he was doing. The Complainant stated that he informed Ms A that they were new products and he was waiting for the supervisor to return to confirm that the products were being assembled correctly. The Complainant further submitted that Ms A aggressively accused him of being slow.

According to the Complainant’s submission, Ms B then told another employee, who were working in close proximity, to come over so that the Complainant could train him on the assembly of the products. The Complainant stated that he informed Ms A that he was unsure of the assembly of these prototype products and as he required the assistance of the supervisor to confirm their assembly, he was not in a position to train his colleagues.

The Complainant stated that Ms A then informed him that if he could not train the other employees on that assembly, then she wanted him to go to a different area of the plant. According to the Complainant, Ms A requested him to follow her to that particular area, where five people were already working. According to the Complainant’s evidence, he enquired from Ms A as  to who was going to train him in this area and also advised her that he required personal protection equipment for that particular job. The Complainant stated that Ms A ignored his question/request and proceeded to instruct another employee to leave his angle grinder on the table and that the Complainant would take his place.

According to the Complainant’s evidence, he informed Ms A that he did not have the experience for that job and that he would need a refresher course on using the angle grinder, as it had been a number of years since he did the last course on the use of this equipment. The Complainant further submitted that he again informed Ms A that he would need someone to train him and he also required the personal protection equipment. According to the Complainant, Ms A informed him, in response, that he did not need the equipment and that he would be fine.

In his submission, the Complainant stated that he was concerned as to health and safety and, as a result of these concerns, requested that one of his colleagues be in attendance with him. According to the Complainant, when this request was refused, he asked if he could record the conversation. The Complainant further submitted that Ms A informed him that he could not record her voice and, in a raised tone, informed him that he would “regret his actions” and then instructed him to follow her to Human Resources (HR).

According to the Complainant’s submission, on the way to the HR Office, he asked if he could bring a witness with him, but his request was refused. The Complainant submitted that, on reaching the HR Office Ms A informed him that he was to wait outside in the corridor until he was called in. The Complainant further stated that, when he was called into the office, Ms A informed him that he was going to be suspended. According to the Complainant, he again requested a witness for this conversation but was refused. The Complainant stated that he then requested to record the conversation but was informed that it was against company policy.

The Complainant stated that when he asked how long he was being suspended for, Ms A replied saying that she was not suspending him but was going to actually sack him. According to the Complainant, he then requested a reason as to why he was being sacked. He stated that Ms A informed him that the HR Officer (Ms B), would send him his P 45. According to the Complainant’s submission, Ms B, who was in attendance throughout this interaction did not intervene at any stage.

According to the Complainant, when he left the meeting he was confused as to whether he was suspended or sacked and, when he sought clarification in this regard, Ms B told him that she would inform him as to the outcome of the decision. The Complainant submitted that he received an email from Ms B on 13 February 2018 which advised that his employment had been terminated on the grounds of gross misconduct and that he would be paid in lieu of his normal notice period.

Substantive submission:

According to submission made on his behalf by his legal representative, the first time the Complainant became aware of the specific allegations underlying his dismissal was when he received a copy of the Respondent’s submission to the Workplace Relations Commission. It was submitted that according to the Respondent’s documentation, the Complainant’s employment was terminated on the grounds of gross misconduct for the following reasons:

1.       Intimidation, harassment and physically threatening conduct towards the Operations Manager.

2.       Gross and malicious insubordination and refusal to follow a reasonable work request from a Manager.

3.       Gross and repeated violation of the Company Policy on mobile phone use and refusal to comply with Company Policy when advised to do so by Management.

According to the Complainant’s submission, he denies the allegation of gross misconduct against him but was not even afforded a disciplinary hearing at the time of his dismissal. In support of his  submission, in this regard, the Complainant made reference to, inter alia, the Labour Relations Commission Code of practice on Grievance and Disciplinary Procedure, Section 6 (7) of the Unfair Dismissal’s Act, 1977, and to the Respondent’s own Handbook, which at  Step 5 under the heading of Dismissal, details that “ a full investigation will be conducted and the disciplinary meeting will be held”.

In addition, the Complainant’s representative referenced the following case law in support of the submission being made:  Connolly v McConnell (1983),  Lyons v Longford Westmeath Education & Training Board,  O’Riordan v  Great Southern Hotels [UD1469-2003]  and an Employment Appeals Tribunal case reference UD106/2010.

In summing up on behalf of the Complainant, his legal representative submitted that the Respondent failed to:

·         fully investigate the circumstances of the alleged offence

·         carry out an investigation prior to taking any disciplinary action

·         give the Complainant the opportunity to defend himself against the charge being made

·         to notify the Complainant of his right to appeal his dismissal

In addition, it was submitted that the person who is alleged to have a cause of complaint against the Complainant was also the person who terminated the employment.

Based on the above submissions, the Complainant is seeking a favourable decision that his dismissal was unfair and that redress, in the form of compensation, should be applied.

Background:

According to the Respondent’s submission, the Complainant was employed as a General Operative under a contract of employment dated 4 May 2007.

The Respondent made specific reference to the clause in the Complainant’s contract which stated as follows: “you will be required to be flexible in this position and must be prepared to undertake such other work as may be assigned to you by the Company from time to time. Such work can be outside the area of your normal duties and it may be for such subsidiary companies as the Company may require.”

In addition, the Respondent pointed out that the Complainant’s contract provided for dismissal on the grounds of “Misconduct (serious or persistent)”.

The Respondent drew specific attention to their policy on mobile phone use and the recording of sound or video on the company premises, which is set out in the Employee Handbook and state as follows:

“Mobile Phones/Personal Music Items: due to the intrinsic dangers present within the workplace the wearing and use of all personal music players including radios, iPods, mobile phones etc is strictly prohibited. Mobile phones are not to be used by employees of the factory floor. All employees are requested to leave their mobile phones and personal music accessories switched off during working hours. It is not permitted to use mobile phones or any other device to record sound or video on the premises.”

The Respondent also confirmed that the Complainant had received a copy of the revised Employee Handbook on 20 December 2017 and had signed receipt for same.

According to the Respondent’s submission, during most of his employment, the Complainant worked doing assembly in a particular area of the plant (Area 1) and had a work record there, with no disciplinary issues.

The Respondent submitted that, as a result of a severe downturn in the specific area of the business which is carried out in Area 1, in May 2017, a number of employees were made redundant while a number of others were put on short-term layoff.  The Respondent submitted that they did their best to relocate employees to other areas of the business where possible.  According to the Respondent’s submission, the Complainant was initially facilitated with work in another area (Area 2), before being subsequently provided with work in a third area (Area 3), as that was where there was a requirement for extra workers at the time.

According to the Respondent, similar reassignments were made for other employees, at the time, in an effort to retain as many jobs as possible.

The Respondent submitted that, in December 2017, a robotic manufacturing machine which was dedicated to the business of one of their key customers, became inoperative, which required the tasks, formerly performed by the robot, to be performed manually until the robot was repaired and recommissioned. According to the Respondent, this required the need for additional general operative labour to allow for the continuation of the production of that client’s products at the rate required by the contract in place between the Respondent and their client.

According to the Respondent’s submission, as the work in Area 3 was quiet at that time, the Complainant was reassigned to the area mentioned in the previous paragraph (Area 4) and was required to work there pending the robot being returned to service.  The Respondent further stated that when the robot was repaired, the Complainant was advised that he would be reassigned back to Area 3, as the area had become quite busy. According to the Respondent, the Complainant was dissatisfied with a return to Area 3 as he preferred to be reassigned to Area 1.

Background to the complaint:

According to the Respondent’s submission, on 4 January 2018, the Complainant requested a meeting with the HR Administrator and the Operations Manager, during which he claimed he had been “unfairly dismissed” from Area 1 to Area 4. The Respondent further submitted that the Complainant stated the reason he came to work with the Respondent was to do assembly work and that he would not perform any other job which the company may assigned to him other than assembly work.

According to the Respondent, the Complainant stated that he did not want to do work in Area 4 and would not return to that job. The Respondent submitted that the Complainant stated that he wanted to talk before going further and seeking legal advice. According to the Respondent, no formal grievance was lodged prior to that meeting.

The Respondent submitted that the letter was sent to the Complainant, on 5 January 2018, from the HR Administrator confirming the discussions at the meeting the previous day and citing the flexibility provisions of his contract of employment in relation to the acceptance of work as may be assigned to him by the Company from time to time. The Respondent stated that the Complainant was advised, in this letter, that he would continue to work in Area 4 from 8 January 2018 until the robot was returned to service and then he would be returned to Area 3. The Respondent further stated that these assignments were being made with the view to keeping the Complainant in employment.

According to the Respondent’s submission, by early February 2018, the Complainant had been returned to Area 3. The Respondent submitted that the Operations Manager (Ms A) had been instructed by senior management to set up processes and procedures to streamline production in Area 3, so as to ensure that all delivery deadlines would be met.  It was further submitted by the Respondent that one milestone in this process was to have all general operatives in the area trained to perform all welding, finishing and assembly functions for this product. According to the Respondent, the Complainant was well aware of this initiative as Ms A had explained this to the staff earlier in the week.

The Respondent submitted that, on Monday, 5 February 2018, Ms A began to perform her assigned duties to implement the streamlined processes and procedures in Area 3. According to the Respondent’s submission, from her arrival on the floor in that area, Ms A was conscious of dirty looks been given to her by the Complainant. The Respondent further submitted that, although she viewed this as an attempt by the Complainant to intimidate and harass her, Ms A tried to ignore the situation in the hope that the conduct would simply stop if she did not react to it.

According to the Respondent’s submission, on Friday, 9 February 2018, Ms A asked the Complainant to show another general operative (Mr C) how to attach certain items onto product being manufactured in Area 3. The Respondent submitted that this simple request was met with an immediate and explosive, negative response from the Complainant who escalated it immediately into a state of aggravated and aggressive confrontation. According to the submission, the Complainant stated “no I will not show him anything” and when queried as to why not, replied “I’m not a trainer”. 

It was further submitted that Ms A then informed the Complainant that she was not asking him to train Mr C but was simply asking him to show Mr C how to put on the items on the product. According to the Respondent, when the Complainant again stated that he would not show Mr C how to do the work, Ms A then replied that Mr C could observe him doing the work and would then know how to do it. Further submission suggests that the Complainant once again refused, saying he would not allow anyone to watch him while he worked.

According to the evidence submitted, on behalf of the Respondent, the Complainant, who had his mobile phone in his hand, was informed by Ms A the phones were not allowed in the factory floor during working hours.

The Respondent submitted that Ms A next asked another general operative to show Mr C how to do the work and asked the Complainant to move to a different location while this was occurring. According to the Respondent, the idea was to swap the Complainant and the other general operative to avoid further confrontation and work around the refusal of the Complainant to cooperate. The Respondent’s evidence suggests that when asked to move to the different location, the Complainant aggressively refused stating he had no training for the work in that area. The Respondent submitted that this contention was not true as the Complainant was trained and was engaged in the work involved the previous week, as his training records would confirm. According to the Respondent, the Complainant again aggressively refused to make a temporary move to the other location.

According to the Respondent’s submission, at this point, Ms A noticed that the Complainant had his mobile phone in his hand and that the red light on the phone was lit. The Respondent submitted that Ms A asked if the Complainant was recording her. The Respondent stated that the Complainant initially denied he was recording Ms A. However, the Respondent submitted that in Ms AA asked the Complainant on two occasions to stop recording, as it was against company policy, he aggressively stepped forward and trust the phone in Ms A’s face, saying, “yes, I’m recording you.”

The Respondent submitted that when Ms A asked the Complainant what he was recording her for, he replied that it was for his defence. It was further submitted that Ms A indicated to the Complainant that she had simply asked him to do something. According to the Respondent, Ms A became uncomfortable with how close the complainant had moved into her personal space and became concerned for her safety. The Respondent submitted that Ms A again asked the Complainant to stop recording and advised that if he did not do so, they would need to go to HR.

According to the Respondent, when the Complainant again refused to stop recording, Ms A stated that they must go to HR.  The Respondent stated that, on the way to  HR, the Complainant followed behind Ms A at a very close and physically intimidating distance and that by the time they arrived at the HR office, Ms A was in significant fear for her safety.

According to the Respondent’s submission, when Ms A and the Complainant arrived at the HR Office, Ms B, HR Administrator was present.  According to the evidence submitted, Ms A requested the Complainant to give her a minute and he waited outside the door, before returning a few minutes later with a cup of water. According to the Respondent’s submission, when the Complainant arrived back in the office his mobile phone was held high and he stated that he wanted to record the interaction. The Respondent stated that Ms A informed him that the use of the mobile phone for recording was against company policy, as stated in the Employee Handbook.

The Respondent submitted that the Complainant angrily refused to put away his phone and an argument ensued over the policy against recording and whether this policy was contained in the employee handbook.  According to the Respondent’s submission,  Ms A informed the Complainant that if he continued to record there would be no option but to suspend him. The Respondent submitted that the Complainant responded by saying “ for how long?” and refused to comply.  According to the Respondent Ms A then stated that if the Complainant refused to comply she would have no option but to fire him, to which the Complainant replied “okay, when do I get my notice pay and P45?”.

According to the Respondent’s submission, the Complainant accepted his termination and returned to the factory floor to collect his personal belongings.  It was further submitted that, on 12 February 2018, the Complainant emailed HR claiming he did not know if he was suspended or sacked from work. The Respondent submitted that, by email of 13 February 2018,  it was confirmed to the Complainant that his employment had been terminated you on the grounds of gross misconduct and that he would receive his P45, notice pay, accrued holiday entitlement and any other entitlements to the end of the pay period that week.

The Respondent’s substantive submission:

According to the Respondent’s admission, the Complainant’s  employment was terminated on the grounds of gross misconduct for: (1) intimidation, harassment and physically threatening conduct towards the Operations Manager (Ms E), (2) gross and malicious insubordination and refusal to follow a reasonable work request from a manager and (3) rules and repeated violation of the company policy on mobile phone use and refusal to comply with company policy when advised to do so by management.

The Respondent submitted that the Employee Handbook contains the right of appeal for any dismissal within five days of notification of the decision. However, according to the Respondent, the Complainant did not make any appeal of the decision to terminate his employment.

Based on the above, the Respondent submitted that the Complainant was properly dismissed for gross misconduct.

Legal submissions re Redress:

On the matter of redress, the Respondent made reference to Section 7 (2) (b) of the Unfair Dismissals Act. Specifically, the Respondent submitted that the conduct of the Complainant demonstrated that it was his intent to harass and intimidate a female manager and create a prolonged disturbance likely to result in his termination.

The Respondent further submitted that the Complainant failed to take an appeal of the decision to terminate which was open to him. Consequently, the Respondent submits that the financial loss, if any sustained by the Complainant, was attributable to his own intentional conduct orchestrating his dismissal.

The Respondent  also made a detailed submission in relation to the requirement for an employee, who has been unfairly dismissed, to mitigate their financial loss by securing alternative employment.

The Complainant was dismissed by the Respondent on the basis that his actions/behaviour on 9 February 2018, consisting of  (1) intimidation, harassment and physically threatening conduct, (2) gross and malicious insubordination and refusing to follow reasonable work requests and (3) gross and repeated violation of company policy,  constituted gross misconduct.

The law which applies to the consideration of the Complainant’s complaint is as follows:

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“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 the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose 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….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are 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 for justifying the dismissal.”

Finally, Section 6 (7) of the Act states as follows:

“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, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so –

“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—

(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) of section 7 (2) of this Act.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

With regard to the case in hand, it is clear from the evidence adduced that the termination of the Complainant’s employment was effected on 9 February 2018, arising from  interactions, which took place on that date, between the Complainant and a member of the Respondent’s management team.

The Respondent presented compelling evidence in relation to the Complainant’s actions and behaviours during the interactions with his manager on that date. The manager in question, Ms A, provided evidence at the Oral Hearing which I found to be particularly compelling, with regard to the tone and tenor of the Complainant’s behaviour, which she clearly found to be threatening and intimidatory.

Having carefully reviewed all the evidence adduced in this regard, I am satisfied that the Complainant’s continued refusal, on the morning in question, to take instruction in relation to work assignments and to comply with reasonable requests to desist from recording the interaction between the parties, was the main reason for the termination of the Complainant’s employment.

Based on the evidence presented, I am satisfied that the Complainant’s behaviour and actions, on the morning of 9 February 2018, were such that any reasonable employer would be justified in initiating the disciplinary procedures in the circumstances.

However, notwithstanding the fact that the Respondent may have had reasonable grounds, based on the Complainant’s conduct, to consider termination of the employment, there is an onus and responsibility on the Respondent to ensure that fair process  is applied in reaching that conclusion and that the Complainant is provided with  full access to an appropriate procedure which recognises and  protect his rights in this regard.

Having carefully considered all of the evidence adduced in this regard, I find that the Respondent failed to apply fair process or procedure in their termination of the Complainant’s employment. The termination was affected in a summary fashion,  by the member of management who had been at the receiving end of the inappropriate conduct who, as a result, could not be considered as a nonbiased party to the process.

In addition,  the termination was affected without any appropriate investigation and/or disciplinary hearing, at which the Complainant might have had an opportunity to respond to the complaints being laid against him.  I note in their submission, that the Respondent’s made reference to the fact that, as the Complainant’s did not appeal the dismissal decision, that signified, in some way, that he accepted the decision and/or that he was properly dismissed as a result. 

In considering this aspect of the Respondent’s submission, I find no evidence to suggest that the Complainant was properly informed of his right to appeal.  Consequently, any chance that the Complainant may have had of redressing the impact of the lack of procedures up to that point, were denied to him when the Respondent failed to provide an appropriate appeal process.

Therefore, taking all of the above into consideration I find that the Respondent’s failure to provide appropriate process/procedure with regard to the termination of the Complainant’s employment renders his dismissal unfair.

However, notwithstanding the above finding, I am satisfied that the Complainant’s conduct, as it applied, in general, to the acceptance of/compliance with reasonable management instruction but, in particular, with regard to his behaviour during the interactions with his manager on 9 February 2018, which can only be considered as wholly inappropriate and unacceptable in the circumstances, was a very significant contributor to his dismissal.

In this regard, I am satisfied that the Complainant had the option on the date in question to have complied with his manager’s instructions, albeit under protest, and initiate a formal grievance under the company’s Grievance Procedure. I am further satisfied that had he done so, it would, at minimum, have prevented the escalation of the incident and would, therefore, have eliminated the grounds on which the Respondent based the decision to terminate his employment. Consequently, I am satisfied that had the Complainant taken this more reasonable option in the circumstances it is most likely, that his employment may not have been terminated.

Therefore, I can only conclude that the Complainant was primarily responsible for his own dismissal and the only reason I am finding in favour of his claim for unfair dismissal is because of the Respondent’s failure to provide reasonable and appropriate process in arriving at and  implementing the decision to dismiss.

When considering redress, which is by way of compensation, I have, in line with Section 7 (2) (f) of the Unfair Dismissals Act, as amended, factored in the extent to which the Complainant contributed to his dismissal.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s dismissal was an unfair dismissal and, therefore, in breach of the Unfair Dismissal’s Act, 1977.

Based on  the above decision I award the Complainant €3,500.00 in compensation for the Respondent’s breach of the ACT.

Unfair Dismissals Act

Gross Misconduct