ADJ-00018729

Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Logistics Company

Representatives

  SIPTU

 Carley and Connellan Solicitors

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-00024158-001

14/12/2018

The complainant was employed by the respondent as a Warehouse Operative from 2008 until his employment was terminated on 20^th June 2018 for gross misconduct. The complaint relates to alleged unfair dismissal.

The respondent denies that the complainant was unfairly dismissed. The respondent stated that the complainant was subject to its corrective procedures following his failure to attend work on four consecutive Public Holidays in 2018. The respondent outlined that it was clarified to the complainant in December 2016 that Public Holidays were considered to be normal working days and that all Operatives were required to attend unless advised otherwise by their Manager. The respondent confirmed that all Operatives were paid the correct Public Holiday entitlements in compliance with the provisions of the Organisation of Working Time Ac, 1997.

The respondent stated that following the corrective procedure, the complainant received a written warning in respect of his failure to attend on Monday 19^th March 2018, a second written warning for his failure to attend work on Monday 2^nd April 2018 and a final written warning in respect of his failure to attend work on Monday 7^th May 2018. The respondent confirmed that the complainant was dismissed as a result of a corrective procedure in relation to his failure to attend work for the fourth time on Monday 4^th June 2018.

The respondent stated that the complainant appealed the decision to terminate his employment on the basis that he should not be obliged to work on Public Holidays and did not recall the clarification that was provided to all operatives in December 2016 relating to Public Holidays.

The respondent confirmed that an appeal of the complainant’s dismissal took place on 10^th July 2018. The appeal was unsuccessful and the decision to dismiss the complainant was upheld. The respondent contends that it adhered to its procedures throughout and that the decision to dismiss the complainant was not unfair.

The complainant stated that he was dismissed on 20^th June 2018 as a result of a corrective procedure/disciplinary process for his failure to attend work on Monday 4^th June 2018. The complainant stated that he informed his Team Leader that he would not be at work on 4^th June 2018 as he felt he should not be forced to work on Public Holidays. The complainant stated that on his return to work he was invited to a back to work interview which was arranged at short notice, without a written invitation to attend and with no opportunity for him to arrange Trade Union representation. The complainant also outlined that he was not informed that his failure to attend work on 4^th June 2018 could lead to his dismissal.

The complainant stated that his dismissal was unfair as he had informed his team leader well in advance of his absence on 4^th June 2018 which is in compliance with the provisions of the staff handbook. The complainant also stated that he had not received a document in December 2016 relating to the requirement to attend work on Public Holidays. The complainant sated that he was denied the principles of fair procedures and natural justice as a result of the respondent’s actions towards him and its management of the corrective procedure.

The complainant cited the cases of Concepta Brebner v Clann Mor Residential and Respite Limited UD1613/2014, Connaught Gold v Connor Rafter UD48/2014, Hennessy Read and Write Shop UD192/1978 and Kearns v Owen O’Driscoll UD507/2015 in support of his complaint.

The complainant’s representative also cited Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC 1996: 315) where the Employment Appeals Tribunal stated:

“ We have always held this exemption [of summary dismissal] applies only to cases of very bad behaviour of such 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 behaviour fell short of being able to be called by the dirty word “misconduct” we have always felt that they would have said so by adding such words as negligence, slovenly workmanship, bad timekeeping etc. They did not do so.”

The complainant contends that his summary dismissal for gross misconduct was unfair and disproportionate and he is seeking compensation in relation to his complaint.

In relation to this complaint, I find as follows:

The requirement to attend work on Public Holidays was confirmed to the complainant in December 2016. While the complainant stated that he did not recollect this instruction, documentation submitted by the respondent shows the complainant’s signature confirming receipt of absence reporting training and instruction relating to attendance on Public Holidays and also Clocking In/Out procedures.

In addition, each time the complainant failed to attend work on Public Holidays in March 2018, April 2018, May 2018 and June 2018 he was subject to the respondent’s corrective procedures and again reminded that Public Holidays were normal working days and all Operatives were required to attend work unless advised otherwise by their Manager. The complainant stated that he believed he did not have to attend work as the days in questions were Public Holidays and he should not have to work on Public Holidays.

I find it implausible that the complainant could have been in any doubt in relation to his obligations to attend work as directed. It appears to me that the complainant simply decided not to attend work on the days in question and continued to do so despite being disciplined for so doing on each occasion. After the fourth corrective procedure relating to his absence on 4^th June 2018 and while he was in receipt of a final written warning (not appealed) the complainant was summarily dismissed on 20^th June 2108 for Gross Misconduct.

The Applicable Law:

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

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:

(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,

Gross Misconduct

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 thatno 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.’

Band of reasonable responses.

As to whether there were substantial grounds for the Complainant’s summary dismissal, 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, 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.”

In all of the circumstances of this complaint, I am satisfied that the complainant’s repeated failure to attend work on four consecutive Public Holidays, despite being disciplined on each separate occasion, was behaviour of such a kind that “no reasonable employer could be expected to tolerate” and in my view is appropriately classed a gross misconduct. I also find that the actions of the respondent in summarily dismissing the complainant were within the range of reasonable responses of a reasonable employer. Accordingly, I find that the complainant was not unfairly dismissed.  

Having considered the submissions of both parties, I find that the complainant was not unfairly dismissed. Accordingly, the complaint is not well founded.

Unfair Dismissal, Gross misconduct, band of reasonable responses