Complainant

Respondent

Anonymised Parties

A Technician

An Alarm /Electronics Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00026721-001

01/03/2019

The issue in contention was the issuing and or appropriateness in the circumstances of a Final Written Warning.

On the morning of the 21^st November 2018 an alleged incident took place involving the Complainant and his Manager, Mr.Xa. The Manager later made a formal complaint and it was the subject of an Investigation which later became a Disciplinary Process.  A Final Written Warning was issued to the Complainnat which was upheld at an Appeal hearing.

The Complainnat maintained that the initial incident had been completely exaggerated, had not been fairly investigated and the entire process had been a “loaded against him” from the start. The Final Written Warning was completely disproportionate to the incident and had to be set aside.

It was accepted that an incident had taken place between a Manager and the Complainant on the morning of the 21^st November 2018.

A full Investigation, properly managed and scrupulously fair, had taken place. His was followed by an equally fair and transparent Disciplinary and Appeal process. Natural Justice had been followed as set out in SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures.

The outcome had been proportionate to the Company culture and Codes of Behaviour. There were no good grounds for an Adjudication Officer to set it aside or to alter it.

3:1       The Law – Guidance from 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.

3:1:1        Fairness of Procedures

Although this case was taken under the Industrial Relations Act,1969 the key issues involved are effectively the subject of much commentary and analysis in cases taken under the Unfair Dismissal Act,1977. It is worth looking at some of this commentary.

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 or in this case the issuing of Written Warnings 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 or in this case issue a Final Written Warning:

“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 46 of 2000 – Statutory code of Conduct on Grievance and Disciplinary Issues effectively translates Mr. Justice Flood’s observations into common practice.

3:1:1     Conclusion – Fairness of Procedures.

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 and SI 146 of 2000.

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 a Written Warning 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 or in this case a Warning 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.

In this instance the Respondent engaged in extensive investigations and interviewing of witnesses. Full details were provided to the Complainant and he was ably represented by this Union. The Appeal process was professionally conducted.

3:2:1    Proportionality Conclusions.

The vast body of Precedent decisions in this area is that it is not the job of the Adjudication Officer to effectively re run an Investigation and Appeal process once he or she is satisfied that Fair Procedures were followed and Natural Justice was observed. I was satisfied that this had been the case.

In this Dispute the Respondent employer felt that a Final Written Warning was the appropriate response.

Judge Linnane, quoted above in Allied Irish Banks plc v Purcell [2012] ELR 189 made the important distinction between what the EAT or an Adjudication officer might feel and what the employer’s view was.

The Adjudication officer was not to “substitute its view for the employer’s but to ask was it reasonably open to the Respondent to make the decision it made”.

In this case I must accept this Legal precedent and find against the Complainant on the proportionality grounds. The Final Written Warning stands.

Act

Complaint/Dispute Reference No.

Summary Recommendation / Please refer to Section Three above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00026721-001

Case is dismissed. Final Written Warning stands.