Complainant

Respondent

Anonymised Parties

A Store Assistant

A Retailer

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-00020376-001

06/07/2018

This dispute involves a claim by the complainant against the respondent that he was subjected to an Unfair Dismissal.   The complainant referred this complaint against the above respondent on the 6th of July 2018.     The complainant has submitted that he was unfairly dismissed by the respondent on the 21st of February 2018.  

The claimant has also submitted a dispute under Section 13 of the Industrial Relations Acts 1969 claim on the 14th of February 2018 in respect of the respondent’s decision to suspend him with pay following an incident which occurred on 13 January 2018, where a complaint was made against the Complainant.

I proceeded to a hearing of this complaint and the dispute lodged under ADJ-00013225 on the 21st of March 2019.

The complainant submits that

On 13th of January 2018 he was sweeping in the warehouse in the respondent store when an area manager and a trainee manager were passing the area,

The area manager asked him to stop brushing for a moment while they passed and he jokingly replied "nope",

The area manager asked if it was a joke he said yes, and he stopped sweeping until they passed by,

He was later called to a meeting about the incident and was suspended with pay while an investigation took place into his alleged misconduct,

He was dismissed on to the 21st of February 2018,

He did not appeal the decision.

The respondent submits that

Following an incident which occurred on 13 January 2018, a complaint was made against the Complainant by an Area Manager and a Trainee Area Manager,

the Complainant was suspended on full pay to allow an investigation to take place and this decision was confirmed by the relevant Area Manager,

An investigation and disciplinary process took place and the Complainant was dismissed for gross misconduct for breaching the Respondent’s rules of conduct and in particular his refusal to follow a Manager’s instruction and arguing on the Respondent’s premises,

This decision followed a comprehensive and fair investigation and disciplinary process,

The complainant did not avail of the appeal process which had been notified to him in writing.

The Unfair Dismissals Act, 1997 stipulates that: Section 6(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.”

Section 6(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: ...

(b) the conduct of the employee,…”

In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or 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 justifying the dismissal.

(7) 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) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted.

The Applicable test to establish whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Respondent of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.

Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

An adequate investigation has to be assessed by the standard that could be objectively expected of a reasonable employer as per J Sainsbury Plc v Hitt (2003) ICR 111.    In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).

It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made. (C. Hayes v P. Kinsella T/A Kinsellas of Rocklands UD690/2012).  

The respondent advised the hearing that the Claimant was dismissed by letter dated 21st of February on the grounds of misconduct following a fair and impartial investigatory and disciplinary processes.   The respondent advised the hearing that the complainant did not avail of the appeals process which was offered to him.

In relation to the complaint under the Unfair Dismissals Acts 1977 to 2015, the Respondent relies on section 6(4)(b) of the Acts in its defence, which states: “…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: (b) the conduct of the employee

The respondent advised the hearing that following an incident which occurred on 13 January 2018, a complaint was made against the Complainant by an Area Manager and a Trainee Area Manager. In light of the allegation of misconduct, the Store Manager informed the Complainant that he was suspended on full pay to allow an investigation to take place and this decision was confirmed by the relevant Area Manager.   The Complainant’s contract of employment expressly provides that the Respondent reserves the right to suspend an employee from work and expressly states that this is not a disciplinary step.

The respondent advised the hearing that a comprehensive and fair investigation and disciplinary process took place following which the Complainant was dismissed for gross misconduct for breaching the Respondent’s rules of conduct and in particular for his refusal to follow a Manager’s instruction. The Complainant did not avail of the appeal process which had been notified to him in writing.

Witness for the respondent Mr. C who is the Store manager outlined the complaint received by him in respect of the incident of the 13 January 2018.   He stated that Ms. A area manager and Ms. F, Trainee Area Manager, were conducting a floor walk in the Store which was being closed for renovations. When they entered the warehouse, they saw the Complainant standing on top of a ladder sweeping dust off a compactor machine which is used to crush cardboard. They greeted the Complainant but he did not respond. Ms. A stated that there was a significant amount of dust in the air and subsequently Ms. A requested the Complainant to stop brushing the dust until she and Ms. F walked past.   She stated that the complainant refused to stop and Ms. A replied ‘excuse me?’ but the Complainant refused to stop brushing and made a comment of ‘run on’ or words to that effect. Ms. A stated that she asked the Complainant if he was joking and he replied ‘no’ and questioned why he should stop.     Ms. A stated that he should stop because she asked him to.   Ms.   A and Ms. F left the warehouse and reported the matter to the Store Manager, Mr. C.

Mr. C stated that he reviewed CCTV footage from the relevant time and reviewed the Employee Handbook and called the Complainant into a meeting on 13 January 2018. The Complainant initially stated that he did not know what Mr. C was talking about but subsequently stated that he was only joking. Mr. C informed the Complainant that he was being suspended on full pay to allow for an investigation to proceed. Mr. C explained that the investigation would be conducted by someone other than his personnel leader who had made the complaint to allow for an impartial process.

By letter dated 15 January 2018 the Complainant was informed that he was suspended on full pay following allegations of gross misconduct. The letter stated that he was being suspended to enable an investigation of the following allegations: -

“- Failure to follow the Code of Conduct, Point 5, refusal to follow your managers instruction;

- Failure to follow the Code of Conduct, Point 7, yelling or arguing on Company premises. “

Mr. B an area manager from another store carried out the investigation and conducted interviews with Mr. C, Ms. A and Ms. F. By letter dated 5 February 2018, the Complainant was invited to a disciplinary hearing on 14 February 2018. The letter stated that the purpose of the meeting was to discuss allegations of gross misconduct and the alleged breaches of the Rules of Conduct. The letter set out the specific allegations and stated that on Saturday 13 January 2018 at approximately 3.45pm in the warehouse in Store having failed to follow an initial instruction from his Area Manager, the complainant engaged in an unnecessary argument with her where he demonstrated disrespectful behaviour.   The letter also set out the relevant procedure and states that the Complainant may be subject to disciplinary sanction up to and including dismissal.

The disciplinary hearing took place on 14 February 2018 and the Complainant stated that he was happy to proceed without a support person being present. During the meeting, the Complainant stated that he was messing at the time and that the incident was just a joke. He stated that he when he was replying to Ms. A he stated ‘nope’ and not ‘no’.

By letter dated 19 February 2018 the Complainant was informed of the outcome of the disciplinary hearing which upheld the allegations and found that the Complainant had failed to offer a satisfactory explanation in relation to his gross misconduct.    The complainant was informed of the decision was to dismiss the Complainant and of his right to appeal. The Complainant did not appeal the decision to dismiss him.

The Respondent told the hearing that they had adhered to their own policies and to the principles of natural justice and fair procedures at all times. The respondent advised the hearing that the Claimant was notified in writing of the allegations against him and afforded a full and fair opportunity to consider and respond to those allegations.

In his complaint forms, the Complainant alleges that he has been victimised and refers to a personal injury claim that he brought against the Respondent on foot of an injury he sustained at work.  The complainant did not lodge any claim of victimisation.   The accident at work occurred in May 2015, two and a half years prior to the incident in January 2018 which led to the Complainant’s suspension and dismissal.  The respondent advised the hearing that there is no link between these events and stated that following the accident at work in May 2015, the Complainant was out of work for a period of approximately six months and required surgery on his knee. The Respondent stated that they paid the Complainant for extensive sick leave, and paid for transport to medical appointments when the Complainant was unable to drive, the Respondent also paid for surgery that the Complainant required on his knee and the also paid for physiotherapy sessions to assist his rehabilitation. On his return to work, the Complainant was accommodated in relation to his injury such as allowing him to leave early on occasion if his knee became painful and changing his work tasks depending on the symptoms he was experiencing in his knee.   The Complainant subsequently lodged a personal injury claim against the Respondent with the Injuries Board. That claim was lodged almost two years prior to the incident the subject matter of the claims before the WRC.    The personal injuries claim between the parties has been settled.

The respondent advised the hearing that the fact that the Complainant had lodged a personal injury claim against the Respondent a number of years earlier was not referred to by either the Store Manager or Area Manager dealing with the relevant investigation and disciplinary process and it was not raised at any stage by the Complainant.

The complainant advised the hearing that his dismissal was unfair as it related to an incident where he refused a direction from a manager as a joke.   He advised the hearing that on Saturday the 13th of January 2018 he was sweeping in the warehouse when an area manager and a trainee manager were passing the area.    He stated that the area manager asked if he could stop for a moment as he was sweeping dust from a compactor into the air above their heads. The complainant states that he jokingly replied "nope" and said “you ll have to walk faster” again in a joking fashion.  He advised the hearing that the area manager then asked was that a joke and he said yes.    The complainant states that he stopped sweeping until they passed by and then continued with his work.   He stated that he was later called to the office to see the store manager Mr. C and was advised of the complaint against him and was suspended with pay due to misconduct.

The complainant told the hearing that he was later called to an investigatory meeting and then a disciplinary meeting the outcome of which was to dismiss him. The complainant submits that he is being victimised because he did not resign after taking the personal injury claim following an injury, he sustained at work on the 5th of May 2015 to his left knee which necessitated surgery on the left knee.  The complainant has not lodged any claim of victimisation.

It is clear from the evidence adduced that he complainant does not deny that he refused to stop brushing when asked by his manager, and that he told the manager and trainee manager that they would have to “walk faster” or words to that effect, the complainant submits that this was said in a joking manner and that he meant it as a joke.   The respondent disputes this and following an investigation and disciplinary process has concluded that the complainant failed to follow the Code of Conduct, on two points by his refusal to follow his managers instruction and by arguing with the manager on Company premises. The respondent concluded that the complainant was guilty of gross misconduct.

In considering whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, quoted above.

In addition, it is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made.

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct.  We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

The decision to dismiss in this case related to the complainant’s refusal to follow an instruction from his manager. I find that, even if the Complainant refused to stop brushing the dust into the air and if he told the manager to run or walk faster, as asserted by the Respondent, and which the complainant asserts he meant as a joke, the actions of the Complainant would not amount to gross misconduct. I find that the sanction of dismissal was too severe and therefore unfair.

Having considered the matter, I find that the decision to dismiss the Complainant was wholly disproportionate and not within the range of reasonable responses of a reasonable employer.   I am however satisfied that the complainant in this case did contribute to his own dismissal by failing to follow an instruction from his manager whether in an attempt at joking or not and this is a fact which he does not deny.   I find the complaint to be well founded and that the Complainant was unfairly dismissed by the Respondent.  The complainant has indicated that the redress he is seeking is that of compensation.

Mitigation of loss

In calculating the appropriate compensation due to the complainant, I am must look at efforts made by the complainant to mitigate his loss.   It is well established that in circumstances where there is no mitigation of loss, a limit is placed on compensation.     In the instant case, the Complainant advised the hearing that he did not seek or secure any employment since his dismissal, he stated that he had not been looking for work as he was unable to work since his dismissal due to a knee injury. The complainant stated that this was due to a second knee injury and that he had been going from doctor to doctor in the intervening period as he wanted to fix his leg properly before looking for another job.

Section 7 (1) (c) (ii) provides in relation to redress:

“(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.”.

Accordingly, in circumstances where the complainant advised the hearing that due to injury, he was unable to work since his dismissal and didn’t seek employment it is clear that he has incurred no financial loss and accordingly any award of compensation is confined to 4 weeks remuneration.   In the circumstances, I find compensation in the amount of €1,900 should be paid to the Complainant by the Respondent.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that the dismissal of the Complainant was substantively unfair I award the Complainant €1,900 in compensation.