Complainant

Respondent

Anonymised Parties

Delivery worker

Public service body

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-00029653-001

10/07/2019

The complainant submits that he was unfairly dismissed.

The complainant was employed as a delivery worker with a public service provider from 10 March 1997 until his dismissal on 10 May 2019.

He worked 37.5 hours a week and his weekly rate was €630 plus allowances.

He submitted his complaint to the WRC on 2 July 2019.

The complainant at the outset sought an adjournment as he did not have any representation. He did not have sufficient money to pay for legal representation. The respondent objected to the request for an adjournment.

The adjudicator declined the request to adjudicate as the complainant had been on notice of the hearing since 21 September, had lodged his complaint some 3 months previously and was in receipt of the respondent’s submission, albeit belatedly.

The complainant stated he had been unfairly dismissed. The respondent dismissed him as he was physically unable to complete the amount of deliveries assigned to him within his daily shift of 7.5 hours. His duty or delivery schedule was wrongly designed. He always worked his entire shift and fulfilled his obligations. He operated in accordance with the respondent’s Health and Safety Manual. He could not go at the speed required to deliver the items to the respondent’s customers.

He advised the respondent that he did not need to be trained as the problem lay in in the imperfect design of his duty. The complainant ultimately advised the Operations Manager around the 12 December 2017 that he could not complete his assignments in the 37.5 hours per week.

His union representative advised him in December 2017 that the delivery load was a nationwide problem. Other employees were unable to complete their deliveries but were not put into a disciplinary process like him. A letter signed by 10 colleagues in October 2018 confirmed that the Operations Manager assisted his son in his deliveries.

He claims his dismissal was unfair as he was denied natural justice and a fair procedure. He met a HR Executive and the Operations manager on 12 December 2019. They threatened him that he must work longer hours than his contracted 37.5 in order to complete his assigned deliveries, or else he would be subject to disciplinary sanctions and could be removed from his job.

Without any prior investigation, he was suspended without pay on 14 December 2017. The suspension was invalid as contrary to the respondent’s statement, the complainant did not refuse to comply with the legitimate instruction to send him to an alternative department on the 12 December. He saw this transfer as a punitive measure and not a legitimate instruction.

He submitted a grievance about the respondent’s behaviour on 31 July 2018, but this was ignored. He was taken off the payroll twice- on the 14 December 2017 and on the 12 April 2018 without an investigation.

Upon being cross examined by the respondent’s barrister if he would do anything differently now, the complainant answered in the negative. He also confirmed that he was unwilling to take on any other duty or move to another department. In relation to the staff meeting which he organised on the 18 December (and not the 13 December) , he did so to seek union support for his position which was that the deliveries were in excess of what was practicable on any given day.

The complainant wants to be re-instated.

The complainant has applied for approximately 30 other jobs in the fast food and in security industry but has not found alternative employment.

The respondent denies that the complainant was unfairly dismissed

From late November 2017 onwards, the complainant decided that he was only prepared to deliver between 400 and 500 items per day as opposed to the designated 875 items. It was not his call as to the number of deliveries which he would make. The number was approved in a standardised test.

Reason for the dismissal

The respondent states that the complainant was not a poor performer, but he committed a serious error in repeatedly refusing to complete his assigned duties. The respondent states that the complainant never referenced the Health and Safety manual as the basis for his inability or unwillingness to complete the delivery of designated items to customers. The complainant worked on Route X, a route that he had expressly chosen, and which is not a particularly heavy-duty route. The complainant claimed that he ‘worked to the best of his ability’. He did not ever claim that he had any disability.

The route and amount of deliveries had been tested. The result was that the amount of deliveries was practicable within his 06.00 to 14.00 shift and had 30 minutes to spare.  

Process of dismissal

From November 2017 onwards, the complainant decided that he was only prepared to deliver between 400 and 500 items per day. On 12 December 2017 the respondent HR Manager and Operations Manager met the complainant and advised that if he committed to complete his deliveries there would be no further action taken against him but failing that, the respondent would reassign him to an indoor role as he was claiming that he wasn’t able to complete the deliveries in the allotted 6am to 2 pm shift. Later that same day, the complainant returned half of his items undelivered. The respondent assigned him to another centre (indoor) with a lighter workload.

The respondent met him on the 13 December 2017 to discuss his new assignment to the alternative, indoor role as he had been unable to complete his deliveries on the 12 December. The complainant advised that he wouldn’t be transferring anywhere. The complainant then organised a meeting in the canteen with colleagues. He did not seek agreement of the respondent to hold a meeting with staff, about to embark on their daily deliveries. The complainant then proceeded to set off on his delivery route, contrary to instructions, leaving behind 8 bundles of items, and 15 parcels on his bench. The complainant therefore refused in defiance of the respondent’s instruction to transfer to the alternative depot. The complainant turned up for work on the 14 December in the unit out of which he had been transferred. He was suspended without pay by the Operations Manager on the that date.

The complainant presented himself again into his usual workplace on the 18 December. He was informed that he should not be present in the office as he was on suspension. The complainant informed his manager that he did not recognise the suspension and intended to resume his delivery role. He organised a meeting of staff in the canteen. He left the premises after a discussion with his union representative. He failed to attend for work at the alternative role.

The complainant failed to attend a meeting with the HR manager on 12 January. The complainant met the respondent’s representatives on 1 February where he stated that he would only return to work on his original delivery routes with a period of training. The respondent submitted evidence of the complainant having signed the Standard Operating Manual 9 months previously. The respondent decided that after 21 years’ service, training was unnecessary. The respondent HR manager referred the matter to their Headquarters for consideration as to the necessity to activate the disciplinary process. He alerted the complainant on the 19 February 2018 that one its possible outcomes was dismissal.

In order to avoid the disciplinary process and at the request of the complainant’s union who wished to explore ways of having the complainant resume work, the HR Manager met the complainant and his union representative on 27 February 2018. It was agreed that the complainant would resume his delivery route on the basis of his stated commitment to deliver all the mail assigned to him on that route. He was assisted for the first week in dealing with a backlog caused by the adverse weather conditions.

On 8 and 9 March 2018 the complainant returned to the office with undelivered items. He failed to honour his commitment of the 23 February. The respondent advised that the decision to initiate disciplinary proceedings was delayed so as to allow him a further opportunity to meet his responsibilities. He retained his normal route, but he held back items and returned large volumes of undelivered items to the office leaving his local manager with no option but to send his file to HQ which he did on 4 April 2018. He was placed back on suspension without pay on the 12 April.

On the 1 May 2019 the Head of HR Services and Programmes decided that the suspension should be with pay effective from the 8 May 2018 which was the date on which the respondent notified the complainant in writing of the activation of the disciplinary procedure against him. He was notified that the process could lead to dismissal. The respondent gave the complainant 10 working days to argue the contrary. The complainant and his union representative availed of this opportunity and attended an oral hearing with the respondent on 24 May. The complainant argued that he was entitled to rely on his contracted 37.5 hours a week and that his deliveries should be designed to be deliverable within that time period. He argued that the decision to suspend him should have been preceded by an investigation. He expressed no regret for the stance which he had taken.

The respondent considered all the evidence and issued a letter of dismissal on 12 September 2018.

The complainant appealed the decision to dismiss at a hearing on the 7 November. He based his appeal on what he termed the imperfect design of his delivery duty, that he was not comfortable delivering at his previous speed, the need to relieve him of many deliveries per day and the behaviour of his managers towards him. The respondent declined to accept the appeal as the complainant’s response to the charges of misconduct put to him was to focus on procedural or technical matters of no substance. He failed to address his insistence on delivering approximately 46-57% of items. He deemed fit to tell his managers what he should be doing rather than the reverse. The respondent confirmed their intention to dismiss him by way of a letter dated 1 May 2019.

The respondent submitted that at the appeal stage which was looking at the complainant’s insistence on having a much-reduced delivery load, he advised that training would not assist him. He was repeatedly asked if he would take indoor work and he consistently dismissed the suggestion.

The respondent Barrister advised that it was his repeated insistence for he described as a “bespoke role”-a much-reduced delivery load, plus his refusal to transfer as directed which led the respondent to the conclusion that they had no choice other than to dismiss the complainant.

The complainant made no reference to a breach of the Health and Safety Manual nor of threats to dismiss him at the meeting of the 12 December in his appeal document.

Regarding his grievance, submitted in January 2018, the respondent submitted that this was a complaint at the act of instigating the suspension provisions of disciplinary procedure against him as opposed to how it had been used or misused. The respondent argued that Clare Stevens v An Post is authority for the proposition that you must activate the grievance procedure in order to complain about the fact that your grievances were ignored. The complainant did not do this. The respondent addressed the matters raised in his grievance at meetings and in correspondence in February 2018.

Regarding the complainant’s claims of other people being treated differently, no specifics were provided. Another employee, unhappy with the workload, returned to his work unlike the complainant.

Legal arguments.

The respondent relies on Governor of Bank of Ireland v Reilly (2015) ELR 229. Stated

“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 judgement 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.”

The respondent states that it is not the job of the adjudicator to consider whether she would have dismissed him.

The respondent at the end of the adjudication hearing questioned the complainant as to whether he had any regret about his position to which he replied no. The respondent concluded by stating that the absence of any regret on the complainant’s part concerning his refusal to carry out the work and fulfil the respondent’s obligations towards its customers prevented them from coming to any decision other than dismissal.

Findings.

Section 6(1) of the Unfair Dismissals 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 all the circumstances there were substantial grounds justifying the dismissal “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”

The respondent contends that the complainant’s conduct merited the sanction of dismissal. The conduct which led the respondent to conclude that the dismissal was not unfair was the complainant’s decision to only complete between 46-57% of his assigned deliveries on a repeated basis, the return of items awaited by customers and undelivered, and his failure to transfer to an assigned, alternative, indoor role. None of these elements were contested by the complainant.

The evidence about the load is contested with the respondent stating the complainant’s consignment had been ‘stress tested ‘on the 7 December 2017 and had been deemed to be capable of delivery within the complainant’s 7.5-hour daily shift. The testing model used to determine that his assignment was practicable was not challenged by the complainant, his union or the workforce as a whole. I find that the absence of a critique as to how or why the testing model (for the load) was deficient as opposed to an assertion that it was flawed is a serious omission in the complainant’s case. Based on the evidence submitted I cannot conclude that the workload was unreasonable or unfair.

It is true that the complainant presented a different context and explanation for his choices. He was no longer capable at 50 years of age of going at the speed required to deliver up to 875 items per day; to ask him to do so was a breach of his contract; the assignment was in breach of the respondent’s Health and Safety Manual. The complainant was unable to explain how this inability developed. I find that the complainant’s contract allowed the respondent to require the complainant to “perform any duties as may be assigned from time to time by the company”. I find that it was not unreasonable for the employer to offer the complainant an alternative indoor role. I find that the complainant declared a ‘UDI’ in relation to what he would do. But if it was beyond the competence of the complainant, the question arises as to why he did not activate a process to shed some of these duties- as opposed to “downing tools” -or why he refused to take on the indoor, lighter role. Unfortunately for the complainant, he could not identify which provisions of the respondent’s Health and Safety manual justified or warranted his decision to leave undelivered items in the respondent’s office.

While it is the case that the complainant did indicate his unhappiness with the workload he decided to design his own workload and chose not to engage in any orderly process which could lead to a reduction in items to be delivered by him.

Section 5 of the Unfair Dismissals (Amendment) Act 1993 allows for regard to be had to the conduct of the employer in determining if a dismissal is unfair. The complainant stated that he did not advise the respondent that he was unable to go at the speed required to deliver the items to customers.

Did the employer behave reasonably and fairly?

The respondent’s disciplinary process at Appendix 3, Paragraph 8, allows for suspension in circumstances where the employee is “unwilling to perform work as required or as expected “and can be continued “as long as the employee remains culpably unable or unwilling to work as required or as expected”.

The procedure to suspend did not require a preliminary investigation as stated by the complainant where the facts were not in dispute and the respondent had spoken to him about the requirement to deliver his consignment of items on two occasions before they suspended him.

I find that the respondent made efforts to enable him to recover his position. On 12 December 2017 the respondent HR manager and Operations Manager advised the complainant that if he undertook to complete his deliveries there would be no further action taken against him. The respondent reassigned him back to bis original department on 27 February on the basis of a commitment that he would deliver his assigned amount. In the alternative the respondent offered him an alternative duty in another department. He declined to run with these options.

In Danceglen Ltd T/A Dunboyne Castle & Spa v Fernando Riberio, UDD1839, the Labour Court stated

“It is not for the Court to substitute its view for that of the Respondent in this case. It is rather for the Court to determine whether the decision to dismiss was within the range of responses of a reasonable employer in the same circumstances.

The Court found that the respondent’s decision to dismiss the appellant following the conduct of an investigation and disciplinary process into a breach of internet security which the respondent viewed as a very serious breachwas

” within the range of responses of a reasonable employer to the conduct of the appellant and was not unfair within the meaning of the Act.”

While the complainant stated that other employees returned undelivered mail, they did not attend the hearing to verify this. There were sufficient written references to some employee dissatisfaction but there was no evidence of any prolonged refusal to complete assignments or to report to their assigned centres.

The evidence demonstrates that at the appeal into his dismissal conducted on 7 November, he confirmed that had stated that he was simply “not comfortable delivering at his previous speed anymore.”

There were imperfections in the disciplinary process.

Written submissions explained the delay between the appeal against the decision to dismiss which took place on the 7 November 2018 and the letter confirming the decision to dismiss which issued on the1 May 2019. The final record of the appeal hearing of 7 November issued on the 6 December 2018.The complainant responded stating that he wanted questions to be put to the Operations Manager and the local HR manager. As the complainant had not submitted the questions, the respondent HR Head of HR Services and Programmes asked him in mid-February to forward the specific questions. The complainant did not submit the questions. On 1 April 2019 the Head of HR Services and Programmes wrote to the complainant giving him 4 days to submit the questions. The complainant did not do so. He was dismissed on 1 May by the Head of HR Services and Programmes.

There is a conflict about the respondent’s attention to the complainant’s grievance, submitted in January 2018. This concerned the suspension of the complainant in December 2017 by his two managers and their behaviour towards him. I find that the letters from the respondent in February 2018 explained the basis for their decision. They did not however point to his right to move the complaint to the next stage. Neither did the complainant activate the next stage of the grievance procedure. The manner of how this was handled was far from perfect, but it does not alter the facts – undisputed – on which they based their decision to dismiss the complainant. Nor does this imperfection deprive the respondent of the right to deem the uncontested behaviour as conduct meriting a dismissal.

The second period of suspension without pay commencing on April 12, 2018 was not in keeping with the provisions of the disciplinary procedure which allowed for suspension with pay where an appeal was under way against a sanction. This was corrected on 1 May 2019.

I do not find that the above imperfections/(in)actions deprived the complainant of the opportunity to be presented with all the evidence grounding the decision to dismiss, the right to be represented, the right of appeal, the right to a fair hearing and the option of reconsidering his stance. I do not find that they render his dismissal to be unfair.

Certain inescapable facts must be considered. The complainant chose not to complete his deliveries. Neither the complainant or his union representative challenged the test model or the result identifying that his consignment was more than manageable. He declared a` UDI’, he chose not to process a complaint as to the flawed basis of the tests. He “downed tools”.

I find that the decision to dismiss was

” within the range of responses of a reasonable employer to the conduct of the appellant and was not unfair within the meaning of the Act.”

I do not find that the complainant was unfairly dismissed.

I do not find that the complainant was unfairly dismissed.

Refusal to comply with management instructions.