Complainant

Respondent

Anonymised Parties

General Operative

Meat Processing Plant

Representatives

Andrea Cleere SIPTU

John Brennan Ibec West

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-00029741-001

17/07/2019

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

CA-00029741-002

17/07/2019

The Complainant contends that he was unfairly dismissed on a procedural and substantive basis.

The Complainant was employed by the Respondent from 2011 to 20th March 2019 when he was dismissed for breach of the clocking procedures. Some of the points made by management are disputed, such as the extended break allegations. It is argued that the spirit of SI 146 of 2000 provides that when an employee breaches the standard that is expected an employer should identify this with the employee through the proper process and impose a sanction where necessary while providing an opportunity for the employee to meet the proper standard.   Further, in circumstances where the matter is so serious that it results in the dismissal of an employee, it is expected that the minutes of any meetings would be provided and agreed by the parties as a standard practice.   In this instance, it is unclear who the investigator is, furthermore an investigation report was not produced. Within one week the investigation and dismissal had taken place.   It is submitted that the employer has not acted in a reasonable manner and could have imposed a lesser sanction.

The Complainant was dismissed for gross misconduct on foot of an investigation into irregularities regarding extended rest periods, leaving the site without authorisation and misuse of the mandatory clocking system. The matters are considered as gross misconduct under the Company/Union in-house Works Agreement. There was a full and fair process followed in which the Complainant was represented by his Union. An investigation was held by the Human Resources Manager, a disciplinary meeting was held by the Plant Manager and an appeal meeting held by the Group HR Manager. The Complainant admitted the offences. Another employee was dismissed on foot of the same offences and he did not pursue any claim against the company. It is submitted that the dismissal was fair in the circumstances where no employer can be expected to accepted clocking offences such as occurred in the Complainant’s case.

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

“(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:

…

(b) the conduct of the employee

..”

From the evidence, I find that the Complainant in this case was dismissed on foot of a thorough and fair process of investigation and disciplinary meetings. He was afforded the right to be heard, the right to representation and the right of appeal.            

I note the Company/Union Works Agreement provides for the definition of gross misconduct at clause 25.3 as follows:

“Falsifying any company records, including personnel, timekeeping, production or other records as may be produced or rendered by the employee”.

Clause 17.2 provides:

“It is the employee’s duty to see that his card is correct…If he fails to clock his card or it is otherwise falsified, even by the act of another, it is his duty to bring it immediately to his supervisor and have it corrected. Failure to do so could mean.. dismissal for falsifying the card”.

The Company/Union Works Agreement could not be more clear in relation to the issue of falsification of clock cards. I note there was some discrepancy in the Complainant’s evidence about how far back the actions he took went and the reasons for taking extended breaks.   However, the essential fact of card falsification was not in dispute. In those circumstances, I find that the employer had no option but to dismiss the Complainant and I find the dismissal was fair.

CA-00029741-002 Minimum Notice and Terms of Employment Act 1973

Section 8 of the Act provides:

“8. – Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”.

Because the Complainant was dismissed for gross misconduct, I find that he is not entitled to minimum notice.

Unfair Dismissal complaint not upheld. Gross misconduct.