Complainant

Respondent

Anonymised Parties

A Bakery Operative

A Bakery

Representatives

Christine Traynor BL instructed by Michael Gleeson Solicitor of Coughlan White & Partners

Lefre de Burgh Peninsula

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-00028149-001

02/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028149-002

02/05/2019

The issues in contention concern the alleged Unfair Dismissal of a Bakery Operative (with a related Sunday Premium issue) by a Bakery.

1:1        Unfair Dismissal Complaint – CA - 00028149-001

The Employment commenced in June 2016. The work atmosphere was unpleasant with Supervisors constantly hassling staff. In July 2018 an incident arose over a requested Day Off to attend a family event - Sunday 29th July. Confusion ensure over authorisations and the Complainant ended up being on Unpaid Suspension for three weeks. No procedures were followed, and the Complaint was given no opportunity to state her case.   On the 6th November 2018, while on the night shift, the Complainant asked an employee on anther production line for some assistance. The Supervisor on the other line, Ms. Xm, reacted badly and a verbal confrontation arose between her and the Complainant. The following morning the Complainant was informed that she was being suspended until further notice. She was called in to a meeting on the 8th November with Mr Xbc -the owner of the firm. It was agreed with Mr. Xbc that the Complainant would move to the afternoon shift commencing the following day.

The following day, the 9th November, the Complainant was called to a further meeting with Mr. Xbc and Mr. Xdc - Directors of the Company. It was stated that, since the first meeting, they had had a chance to talk to Mr. Xk. the Night Shift Manager and matters were more serious than first thought. The Complainant was informed that she was suspended pending a full investigation. The Complainant attempted to make her case regarding ongoing bullying by Supervisors but was not listened to. On the 15th November the Complainant submitted a Sick certificate for Stress, but this was retuned to her with a note stating that the Complainant had agreed , at the meeting of the 9th, that her behaviour on the night of the 6/7 November was Gross Misconduct and that she had agreed that her employment was terminated.

The Complainant resolutely denied that she had agreed to leave the employment at the meeting of the 9th November. She had been suspending pending a full investigation and had absolutely not agreed to leave. She cited as an example the fact that she had gone to the GP to get a Sick Cert – this was not the action of a resigned employee. She had been suspended but not dismissed.

She had been denied all fair employment procedures and her dismissal, which it clearly was, was completely Unfair.

1:2       Sunday Work complaint CA - 00028149-002

This complaint was withdrawn.

The Complainant’s employment ended lawfully as she in fact resigned at a meeting with Management representatives on the 9th November 2018. Arrangements were being made, at that time, to investigate a very serious allegation of Gross Misconduct involving a physical threat against a fellow Employee, a Supervisor.

At the meeting on the 9th November the Complainant stated, “It’s better to fire me now” and left the meeting. Her Husband, also an employee, resigned at the same time. There was no ambiguity in the Complainant’s attitude at the end of the meeting. In a letter of the 15th November the Respondent stated that

“It was confirmed and agreed by you and management at the meeting last week on the 9th November that your employment was terminated with immediate effect due to your gross misconduct and threatening behaviour”

The Respondent was in the process of setting up a full investigation, in keeping with procedures, into the incidents that were alleged to have taken place on the night of the 6/7 November. The Complainant was on Suspension but have never been Dismissed or had an ending of Employment ever been mentioned by the Respondent employer.

The Respondent accepted the fact, post the meeting, that the Complainant had left the employment and proceeded to issue the necessary paperwork.

When a Sick Certificate arrived from the Complainant, post a GP visit of the 15th November, it was returned to the Complainant with a note confirming that she had agreed to leave the employment on the 9th November.

There are no valid grounds for a claim of Unfair Dismissal.

3:1       The Applicable Law / Natural Justice

In an Unfair Dismissal situation, the guiding legal principle must be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137, 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:

“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.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for 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 upon at length.

Accordingly, in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness”.

3:3       Key Questions in this case. Dismissal or Resignation

The first key question is whether or not a Dismissal took place or was it a Resignation. The meeting of the 9th November is accordingly crucial.

The letter from the Respondent employer of the 15th November is critical and I quote

“We are returning this to you (A Sick cert) as it was confirmed and agreed by you and management at the meeting last week on the 9th November that your employment was terminated with immediate effect due to your gross misconduct and threatening behaviour”.

The minutes of the meeting were presented in written evidence and the meeting was extensively discussed in oral evidence. It was clear that matters had got contentious and that the Complainant was obviously under considerable stress. She was on Suspension at the time and indeed had a track record of earlier lengthy suspensions. It was not by any description a happy relationship with the Mangers or ,in particular, her immediate Supervisors. There was no doubt that cross words had been exchanged with Supervisor, Ms. Xm , on the night of the 6th. Good and credible evidence was given by the Night Shift manager regarding the entire incident.

As regards the meeting on the 9th the Complainant felt that there was an “Agenda” against her and the words “Better fire me now” were expressed in frustration and the fear of being on another long Suspension. She felt that the Suspension would be without pay and that she would not be able to claim Social Welfare – a considerable financial hardship.

In a straight forward case of Unfair Dismissal, the onus of proof is normally on the employer, who must establish under the UD Act, 1977 “substantial grounds justifying the dismissal”.

However, where a Resignation or Agreement to Terminate arises at a meeting great Legal care must be exercised. A lengthy quote, which is justified in this case, from Barron J. in Loftus and Healy v An Bord Telecom (Unreported, High Court, Barron J., February 13, 1987) is set out below.

: “Subsection (4) is without prejudice to the generality of subsection (1) and accordingly any dismissal which results wholly or mainly from one or more of the matters specified in subsection (4) must be such that the dismissal is justified. A dismissal will be deemed to be an unfair dismissal therefore unless it can be shown that it resulted wholly or mainly from substantial grounds (which in themselves justified the dismissal) of which those enumerated in subsection (4) are some though not necessarily all. Applying this test to the present case, it is not sufficient to show that the assault was the whole or main ground for the dismissal. It must also be shown that it justified the dismissal.

In considering these matters regard must be had to all the circumstances. It is submitted that the employer must be shown to have acted reasonably and that the determination of this issue involves consideration not only of what the employer did before the dismissal, but also of the entirety of his actions up to and including the hearing of the proceedings. …     (Adjudication Officer Highlight)

The primary consideration is to determine the ground for the dismissal. Facts may come to light after the dismissal which might alter the view which a reasonable employer should take of the matter. The reaction of the employer to the contesting of his decision may shed light on his reasons. There must obviously be many circumstances occurring after the dismissal which might be relevant. In my view, these matters should be admissible in evidence and the words ‘having regard to all the circumstances’ in Section 6(1) are intended to have this meaning.”

In other words, the situation surrounding the meeting on the 9th November must be seen in “its entirety”.

The first issue that comes to mind is the “equality of arms” question. The Complainant, a female production Operative was effectively unaccompanied by any Representative and was faced by two Directors of the Respondent. A Verbal Resignation given in such a context must be treated with great caution.

In Redmond on Dismissal Law Bloomsbury 2017 at page 495 the author states when considering Resignations

“However, context is everything. A resignation should not be taken at face value where in the circumstances there were heated exchanges or where the employee was unwell at the time. the intellectual make-up of the employee may also be relevant”

Considerable case law is quoted by the Author in support of this view.

In the case in hand the facts were clear, a serious incident had taken place – the Night Shift Manager’s good evidence was crucial here and the Complainant had been placed on Suspension. A full investigation was in train with an unknown outcome. Serious allegations were also being made by the Complainant. The whole atmosphere appeared to be very fraught between the Supervisor and the Complainant. Again, I refer to the good oral picture painted by the Night Shift Manger of the situation on the night of the 6th. Night Shift Managers do not normally instruct all staff to take a “Smoke break” to allow things calm down.

In this context accepting a Verbal resignation on the 9th November before the Investigation had been completed was in my mind Legally premature.

To follow it up later the 15th with the Respondent letter describing the incident as “Gross Misconduct and threatening behaviour” without the benefit of the Investigation which never had a chance to take place was, also, in my mind a “bridge too far”.

Good legal precedent (cases such as Devaney v DNT Distribution UD412/1993 and others quoted in Redmond above are worth looking at) would indicate that the Employer might usefully have taken a cooing off period and not immediately accepted a verbal resignation at a challenging meeting regarding a very fraught almost toxic situation between the Complainant and her Supervisors. No Written resignation or confirmation of leaving was ever produced by the Complainant. The Complainant pointed out that she would not have sought to submit a Medical cert on the 15th November if she was clear that she had resigned. A “Heat of the Moment” resignation when examined by most Courts has not been found to be sustainable

The question of the Band of Reasonableness or what would a reasonable person have done in a similar situation also comes into focus. The Complainant was clearly upset and had a very negative memory of a previous three-week suspension. A time for reflection would probably have been wise and reasonable.

3:4         Conclusions – UD Act, 1977 Complaint.

On balance therefore I had to come to the view that the meeting of the 9th November did not constitute a Valid ending of Employment and the claim for Unfair Dismissal by the Complainant is valid. This is not to say that the Complainant was without any negative contribution to her own situation.

3:5       Sunday Work complaint CA - 00028149-002

For the record this Complaint was withdrawn.