Complainant

Respondent

Anonymised Parties

A Driver

A Freight Company

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-00025463-001

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969(withdrawn at hearing)

CA-00025463-002

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00025463-003

31/01/2019

This case was first listed for 22 July 2019. There was no appearance by the complainant at hearing at that time. At the time of submission of the complaint in January 2019, the complainant had recorded that he was legally represented. By July 2019, this representative had come off record.

As the Respondent had fielded a full team to defend the case, I endeavoured to ascertain whether the complainant had given any reason for his nonattendance at hearing in July?

I learned that the address cited on the complaint form did not match the address to which the complainants post was delivered. On that day, he had apparently contacted the WRC to say that he had just been informed of an impending hearing in his case and was unable to attend.

I asked the Respondent through their solicitor to comment on this reason for nonattendance and the Respondent was highly sceptical of the reasons pro-offered and requested collateral documentation before formally opposed an adjournment. They confirmed that the address now relied on by the complainant correspondence to his address used while in their employment.

I concluded that the mistake had been made on the complaint form and I made the decision to relist the case for one day. I wrote to the parties and I requested submissions and relevant documentation in advance of the hearing. I requested that  both parties provide me with a confirmation of their intention to attend the resumed hearing.

The Complainant is a Polish national who worked as a Driver for the Respondent company from 25 March 2008 until the date of his dismissal in August 2018.He worked a 40-hour week with occasional overtime and his pay averaged from €450-€650 per week.

The Complainant withdrew his complaint under the Industrial Relations Act.

CA – 00025463-001 Unfair Dismissal

The Complainant submitted that he had been unfairly dismissed for taking unauthorised leave. He had not worked since his dismissal and had attended a College course.

On his written complaint submitted to WRC in January 2019, the complainant submitted that he had been prevented from taking leave to collect his daughter from Poland and return her to Ireland for school.

The Complainant took issue with the disciplinary process which followed, submitting that he was unable to bring support to the meeting and the process did not comply with fair procedures. He contended that the disciplinary sanction of dismissal was disproportionate to a level which rendered the dismissal unfair. He confirmed that he had signed the WRC complaint form in person.

Complainants Evidence:

The Complainant submitted that he was surprised to have his request for annual leave refused on two occasions in July 2018.

He held an honest belief that the requested time centred on the most suitable time for the operational needs of the company as well as his personal needs to bring his daughter back from Poland for School. He booked flights at the end of July 2018 which covered a 3-week period, 4-22 August 2018. He had not considered cancelling the tickets.

He recalled Mr E, the Operations Manager speaking to him on the company reservations regarding the leave on August 1. He had no idea that an electronic system of leave requests had operated over the previous 2 years.

He was prepared to engage in the company disciplinary procedures and he suffered a set back when his chosen representative, external to the company was not permitted to attend. He was informed that a representative had to come from within the business. He said he was denied witnesses.

He had been on unpaid suspension from 6 August 2018.

The Complainant submitted that the annual leave procedures had not been detailed in his first contract of employment.

The Complainant submitted that he had tried to convince the company that the service was not at all busy at the time of his leave and a company shut down had emphasised this.

The Complainant confirmed that he had received a written warning in April 2018 of 12 months duration.

The Complainant confirmed that he had applied to attend University in January 2018.

The Complainant understood that he had engaged with the company representatives but expressed a sense of total disappointment with Mr E, the Operations Manager as he said he found it humiliating to speak with him. He claimed that Mr E had posed personal sexual questions to him during their last conversation.

The Complainant expressed a disappointment with the company, he believed that he had no choice but to book flights on 26 July. He did not secure any justification for refusing his leave requests and he didn’t feel that he had done anything wrong and saw no need to apologise. He contended that he was perfectly entitled to leave work as “shut down “in one of the larger companies prevailed. He freely admitted that he had not shared the actual reason for requesting the blocks of leave until the Appeal stage of the Disciplinary process.

In response to the Respondent representative, the complainant said it would have been impossible for him to go to Poland over a weekend to organise carriage of his daughter as flights were very expensive.

The Complainant presented his case to clear his name. He submitted that the Company had saved €4,543 in not paying him. He submitted that week 30 and 31 contained the lowest number of hours worked during the year.

The complainant took issue with Mr Cs recollection of his stated difficulties with Mr E at appeal.

CA -000254463-003 Minimum Notice

The Complainant sought payment for his notice period which he was not allowed to serve.

The Respondent confirmed that the complainant had commenced employment on 25 March 2008. He agreed to and signed terms and conditions of employment on 13 May 2008, which included grievance and disciplinary procedures.

The Company is engaged in transport logistics and employs over 120 employees

CA – 00025463-001 Unfair Dismissal

The Respondent addressed the events of July 2018. On 11 July 2018, the complainant requested 23 July x 2 weeks as annual leave. The Respondent stated that the complainant was informed of refusal of leave on 12 July as the dates overlapped by another’s request lodged one year in advance. He did not have these requested holidays worked up.

On 23 July, Respondent also vetoed a subsequent request for annual leave from 1 August 2018 x 2 weeks.

On august 1, the complainant emailed the Operations Director to inform him that he would be away from 5 -21 August. This was picked up immediately by the respondent and deemed an unacceptable action by the complainant and the matter would be raised with the senior managers.

The Complainant rejected this approach and re-affirmed his unavailability. On August 1, the Operations Director asked the complainant to reconsider as his actions would be considered a disciplinary matter of gross misconduct. The Complainant met with the Operations Director on August 3 and nothing changed. The complainant adopted a fatalistic approach to the Operations Director and said “yes, we could do what we had to do “

The Complainant was informed not to return to work until a disciplinary hearing was completed. He was notified of a period of unpaid suspension until the hearing took place on 23 August. The Complainant sought a rescheduling of the meeting and the parties agreed on 28 August at 2pm. The Complainant was advised to bring all flight bookings with him. He did not do so.

The Disciplinary Hearing was conducted by Mr A, Commercial Director and Mr B, Finance Director. The decision was taken to dismiss the complainant. He was offered an appeal of the decision.

An appeal was scheduled for September 17 and took place on 24 September Mr C, Managing Director and a note taker. This followed a concerted attempt by the respondent to get the complainant to engage in the appeal. The Complainant emailed Mr C on September 18 with grounds for his appeal.

These centred on his presence in Poland being mandatory and his requests for leave were unfairly denied. He challenged the veracity of company reports being busy at this time.

The decision to dismiss was not altered on appeal.

Mr C, Managing Director of the company heard the appeal on 24 September. There had been a delay on the complainant’s side and grounds for appeal were first submitted on 18 September by email.

1.The Complainant submitted that it was “mandatory for him to be back before September 1, 2018” he attributed this to family reasons.

2.He was met with a shortfall in competence from his Manager.

3 He was denied an input on the analysis of service levels on how “busy “was determined.

The Appeal was described as lasting an hour. Mr C struggled with the complainant’s demeanour at the meeting, which he described as “challenging “. He told the hearing that this was the first time he heard about the complainant’s daughter being a reason for his leave request. He went on to recount how shocked he felt when the complainant in seeking to justify why he had not engaged with Mr E, told him that Mr E had behaved inappropriately in past conversations with him.

Mr C submitted that he stopped the meeting as the Gardai would have to be called. He described the encounter as “horrendous “. The Complainant then withdrew the allegation.

Mr C listened to the complainant’s side of events during the one-hour appeal but could not find grounds to overturn the decision taken to dismiss. He was struck by the fact that the complainant did not ask for his job back

The Respondent submitted that they were relying on Section 6(4) on Conduct as reason for dismissal. The Complainant took unauthorised annual leave at a time when other employees had followed company procedures in obtaining approval for their leave. This let the respondent understaffed.

The Respondent submitted that this amounted to gross misconduct and loss of trust with the complainant to the point of severing the employment relationship .The Respondent refuted that the complainant had been unfairly dismissed and instead , he had been placed on fair notice that his behaviour amounted to a major problem for the company and that he faced disciplinary action .The Complainant was permitted to have a representative present, but he did not avail of that option .

The Respondent was aggrieved that company property had not been returned.

Evidence of Mr E, Operations Manager.

Mr E told the hearing that the company leave year runs from January to January. The Complainant had taken 12 of his 20 days in the first 6 months of the year. Requests for annual leave were managed on line, through the line manager since early 2018, previously, it had been an ad hoc system. The holiday requests are copied to all.

The Administrator had limited authority and if more than 3 employees sought leave, it was brought to his attention. Once approved, the dates were then texted to the employee by the Administrator. If certain days were rejected, it was typical for the employees to resubmit requests. There were 78 drivers employed. The company had an appeal system.

Mr E recalled receiving a call from the complainant regarding his requested leave. He established that it had already been vetoed. He was not aware that the complainant had changed his mobile phone.

The Complainant then contacted Mr E to say that he would not be available for work 5-21 August. Mr E met with him to appeal to his better judgement of just leaving his work. The Complainant disregarded his advices and told him that he was going on holidays he “could do what he wanted to do “Mr E told the complainant that the Disciplinary procedure would unfold on his return.

On 9 August, he issued a letter to the complainant which notified him that his continued unapproved absence for a 3rd consecutive day had prompted a disciplinary process. He was informed that “once you make yourself available for work again you will be suspended without pay until the hearing can take place.” In the event of an earlier availability, the complainant was notified that the hearing might be brought forward.

He stepped out of the process at that stage. The Complainant emailed to confirm that he would be available to meet on Friday 24 August 2018 but not on 23rd as requested.

The Respondent went on to detail that the complainant arrived for a Disciplinary hearing in the company of an external person to the company who was to act as notetaker. He was advised of company procedures of having a fellow employee, but he did not want that facility. He was given time to select a fellow employee from the company.

The Disciplinary hearing lasting over 2 hours eventually took place on 28 August 2018 and was presided over by Mr A, commercial Director and Mr B, financial Director the Complainant refused representation.

The Complainant was afforded an opportunity to respond to the allegation of his taking unauthorised leave. He confirmed that he had booked his flights to Poland on 23 July. He confirmed that he had not engaged with Mr E on 1 August or given any reason for his seeking the annual leave outside of “my reasons were personal “He presented as being very aggrieved by the company actions, which he interpreted as restricting his liberty.

The Respondent clarified the leave approval process and dissuaded him from his interpretation that Human Resources decided leave requests. the Complainant remained defiant and submitted that Mr E warranted disciplinary action.

The complainant engaged in a standoff by saying that it was within his remit to take leave when he wanted, and it remained the prerogative of the respondent to act if needed.

The Complainant contended that his request for leave had been refused on purpose and placed no weighting on the short notice period which accompanied his requests. the Complainant maintained that the shutdown of a customer plant provided him with a clear opportunity to take leave.

He did not place his daughter or her carriage from Poland into any of the reasons for which his leave was required. He did not provide copies of his travel documents as requested.

Mr B confirmed that the company had a pressing and serious Sneed for drivers and the respondent was perplexed by the complainant’s actions

The Respondent concluded that the “unauthorised leave “was an act of gross misconduct which warranted dismissal. This was communicated at the meeting and committed to writing two days later. The complainant was provided with an opportunity to appeal.

The Respondent Director concluded that the complainant accepted news of his dismissal without any sign of shock. He had not asked to remain in his job.

The Respondent concluded by emphasising that the way the complainant executed his absence was disrespectful to the company and made management relations untenable. The Complainant had not engaged with the company and disregarded his contract with the company.

The Respondent submitted that the unilateral action of walking out with other employees looking on was something they were not prepared to accept.

CA -000254463-003 Minimum Notice

The Respondent relied on Section 8 of the Act and that the conduct of the complainant amounted to gross misconduct and he was not entitled to obtain the protections outlined in the Act.

The Respondent sought that the claim be dismissed.

I have given a lot of thought to the facts presented by both parties in this case. The Respondent presented by way of written and oral submissions. The Complainant relied on oral evidence and supplementary documentation.

The Burden of Proof in the case of an unfair dismissal rests with the Respondent. It is the Respondent case that the dismissal was justified on substantial grounds and was underpinned by procedural fairness. The Complainant holds a converse view. He wanted to clear his name.

CA- 00025463 -001 Claim for Unfair Dismissal

The complainant was employed from 25 March 2008 to the date given as his dismissal of 5 August 2018. The Complainant was notified of his dismissal at the end of a Disciplinary hearing on September 29, 2018 .He was placed on an unpaid suspension from 5 August 2018.

In Redmond on Dismissal Law, Des Ryan BL points to the High Court in JVC Europe ltd v Panisi [2011] IEHC 279, which summarised the legal framework governing conduct-based dismissals under the Unfair Dismissals Acts.

“The issue for the Tribunal deciding the matter will be whether the circumstances proven to find the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal “

I have reviewed the company grievance and disciplinary procedures both the 2012 and 2016 versions.

The facts of this case centre on the events of July and August 2018 in a Family run Freight Company. I accept that the complainant had over 10 years’ service, with episodic disciplinary sanctions at the time of his dismissal. The most recent had been a written warning.

On July 22, 2019 against much respondent opposition, I decided to grant a postponement in the case to ensure the complainant was heard. He did not respond to my request for submissions in advance of the hearing. I note that the Respondent had prepared an extensive written submission and was aggrieved at the repeated absence of the senior management team from the business. It is fair to say that they expressed a high level of incredulity that the reasons given for the complainant’s non-appearance at hearing were not well founded and requested that the conduit of the messages to the complainant furnish some collateral. This did not unfold.

I approached the hearing with an open mind and allowed time for both parties to be heard and test the evidence adduced.

I was struck by the Respondents efforts to manage this issue from the outset. By their own admission, they had a structured leave system in the company and drivers were expected to process requests through this system. The complainant was refused leave in July 2018. He had some unease that he had missed the first feedback due to a change in his mobile phone number. However, it was his clear and unequivocal position at hearing that the respondent curtailed what he saw as his “freedom of movement “outside the workplace. The Respondent told the hearing the leave had been requested and granted to others who had applied through the agreed process.

By this I mean that the complainant deemed himself unavailable to the company from 5 August to 21 August 2018. This came in the aftermath of a refusal to grant him leave due to others having booked it before him. The Respondent rejected this position from the outset and tabled a very clear statement of the detrimental impact of the complainant’s decision on the business and the potential consequences for this decision. He was asked to desist in taking the leave but responded in a fatalistic manner that the company could take any measures against him that they saw fit.

I was surprised by this as this “fatalism “did not match the purposeful approach adopted by the complainant in taking his leave. It did not fit. I established that the complainant had a working knowledge of his contract of employment and the company procedures where unexplained absences of over 3 days were grade as “gross misconduct “the Complainant told me himself that he was on notice that his job was at risk by his decision to take unapproved leave from the beginning. He was not fazed by this threat.

I have found that the Respondent adopted a measured approach to trying to get the complainant to co-operate with the work systems. I accept that this was important to the respondent as they wished to be seen to play fair and consistently with all their drivers.

The 2008 contract of employment is built on a cornerstone of mutual obligation. Both parties have their respective roles to play. The Respondent agreed to provide work in return for pay and conditions. The complainant agreed to attend and uphold the work systems. He signed his acceptance of terms and conditions in May 2008 and this document really matters in this case as it allows me to assess just what the employment relationship looked like. I am satisfied that the contract reflects the spirit of SI 146/2000 the Code of Practice on Grievance and Disciplinary procedures

“Apart from consideration of equity a natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed. Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned “

This brings me to assessing the actions of the Respondent in the first instance. I noted that the respondent was unnerved by the complainant’s behaviour from the outset. On Mr E’s diary note of August 1, he stated that the complainant had indicated that he was unavailable for work and the respondent could not dictate his days off. I found this apparent lack of the complainant’s insight into the terms of the mutual obligation clause in the contract of employment to be stark and worthy of further probing.

The Complainant was not an Agency worker and while I noted that he had a call/over time commitment, he was in the main a core hour continuous worker.

I began to see threads of linkage between the complainants plans to attend College and his increasing remoteness from his long-term employer. I found that his playing “fast and loose “with his employer had a con current sub plot of preparation to attend college. The Respondent did not appear to be aware of his plans in that regard.

I accept the Respondent evidence that they were not placed on notice of the complainants need to take carriage of his daughter from Poland at any time from 11 July, the date of first application to the date of the appeal hearing in September 2018. This was a staggering omission from my point of view.

The Complainants contract of employment permitted him access to the grievance procedure to challenge a perceived wrong directed towards him. I found the lack of recourse to this procedure to be instructive as the complainant appears to have taken refuge in self validation of all events in the case.

He seems to have focussed on his singular placing in the company and neglected to consider that there might be an opposing viewpoint to his or even a bigger picture. He did not take the time to validate his perception of how annual leave is allocated under Legislation. Had he taken the time, he would have found that the employer decides annual leave having regard for an employee’s family circumstances. The fact that the complainant did not expand on his family circumstances in time to inform his first request for leave was another important omission in my consideration of his claim.

Throughout this case, I found the respondent wholly united in their position of had the complainant approached the company with the real purpose for his late requested leave, perhaps something could have been done much sooner to help. In all the circumstances, I cannot accept that it was reasonable for the complainant to walk out of his job without trying to engage in contingency with his long-term employer. I accept that the Respondent lost trust in the complainant from August 1 and did not recover it.

I found the Respondent reference to unpaid suspension to have departed from their own procedures where paid suspension is clearly set out. The complainant was not paid from August 5, the date on his P45. The procedures state that the contract remains live and intact through the Disciplinary procedure. This was not challenged by the complainant at the Disciplinary hearing or on appeal.

While I understand that the respondent was angry with the complainant in response to his highly visible walk out, he ought to have remained on the pay roll pending any larger decision being taken. I was further confused by the reference to a prospective suspension in the 9 August letter. However, I must also acknowledge that the complainant was invited back to a hearing much earlier if he wished, crucially, he did not accept that invitation.

I deduced from the complainant’s evidence that he was keen to attend university and I must conclude that this plan entered a pole position during July and August 2018, leaving his presiding employment relationship and its commitments in a secondary place.

The Complainant addressed the topic of taking carriage of his daughter from Poland extremely late in the day. His latter-day mention of this at appeal was completely overtaken by his allegations against Mr E which were almost immediately rescinded. I could see that Mr C was still affected by the efforts made by the complainant to besmirch Mr E. He simply couldn’t believe it. For my part, I noted that Mr E adopted a highly principled a professional approach to conflict resolution in this case. He tried hard to resolve the matter first in time. His records were of enormous benefit to me.

I accept that the complainant was offered representation which he did not avail of. I noted that there was a Drivers forum available at the company comprised of several different drivers who may have been of benefit to him. I could not ascertain where the complainant was denied an opportunity to present witnesses in support of his case.

I understand the recent Supreme Court outcome in the case of Irish Rail and Mc Kelvey, where legal representation in Disciplinary procedures could only be required in exceptional circumstances. The Complainant did not make a case for the presence of a legal representative, he asked for a friend unknown to the company to take notes. This was not permitted.

I have reflected on all the above and I do not in any way wish to diminish the complainants plans to diversify and expand his career pathway towards University. However, he was still under contract with the Respondent July – August 2018. I found that his behaviour and lack of a reasonable approach seriously challenged the respondent’s authority as an employer.

I found that the complainant was given an ample opportunity to state his case before the respondent at the 2-hour Disciplinary hearing. I found that the Respondent outlined the allegation of gross misconduct from the beginning of August 2018. The Complainant pressed on with his plans to take a two-week period off without official sanction. The Respondent registered that this was unacceptable, and they wish to challenge his decision through the Disciplinary procedure.

I have already stated that the prospective mention of suspension was clumsy.

The Respondent submitted that they did not hear anything from the complainant in the Disciplinary hearing which allowed them to form a view that the complainant had any regrets regarding his decision to walk out. They concluded that the allegation of gross misconduct was proved.

It is my opinion that the complainant was juggling a lot of issues during the summer of 2018. He had plans to diversify which did not involve the respondent and he acted on his urge to visit his home country without permission and without seeking to reach any sort of an understanding with his long-term employer. The Complainant has placed a lot of weight on his analysis of service levels which did not correspond to that of the respondent. Unfortunately, he chose not to test that theory through activation of the grievance procedure. I saw this as missed opportunity.

It is of cardinal importance to the circumstances of the case that the complainant had availed of his statutory leave by the commencement of July 2018. I noted that he had recorded a visit to Poland in June 2018 also.

The Respondent was worried about the impact of the complainant’s behaviour both in front of other staff and in terms of breach of contract. They felt disrespected and deemed the behaviour unacceptable from a long-term driver. At Disciplinary Hearing and on Appeal, they sought but did not hear anything in mitigation which changed their minds as the complainant focussed solely on the demerits of the company and their representatives rather than any role he had in the turn of events. He was not forthcoming with flight documentation.

I find that the Respondent was faced with an extremely challenging situation presented by the Complainant that amounted to an anarchical situation in full view of the company at large. The baseline of more than 3-day unexplained absence featured prominently in the company disciplinary procedures and had been made known as gross misconduct to the complainant, who promptly disregarded this clause. I find that the Respondent is entitled to rely on Section 6(4) on conduct in this regard. The behaviour complained of did amount to gross misconduct.

I find that the respondent has satisfied the burden of proof in demonstrating that there were substantial grounds justifying the complainants’ dismissal through a complete erosion of trust, loyalty, confidence and mutual obligation. I accept that consideration was given to measures short of dismissal and that the pre -existing disciplinary sanction was not a material consideration in the case.

While I have expressed my reservations regarding the respondent misinterpretation of the clause on suspension, I note that the complainant was AWOL during this cognisable period and while invited back earlier, did not avail of the invitation. This renders this point moot in some regard.

I found that the Respondent presided over a procedurally fair dismissal.

The claim for unfair dismissal is not well founded.

CA-00025463-003 Minimum Notice

I find that the Respondent has justified the dismissal through gross misconduct. The question of notice is referred to in Section 8 of the Act. The Respondent is not bound to pay notice in the circumstance.

I find the claim is not well founded.

Decision:

CA -00025463-001

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The claim for Unfair Dismissal has not succeeded. I find for the Respondent.

CA -00025463-003

Section 11 of the Minimum Notice and Terms of Employment Act, 1973, requires that I decide in relation to the claim for minimum notice.

I find that the claim is not well founded.