Complainant

Respondent

Anonymised Parties

A General Operative

A Manufacturing 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-00030053-001

02/08/2019

The complainant commenced employment on 25 September 1997 and he was dismissed by the respondent on 6 June 2019.

During this hearing, submissions were substantial with copious volume of documentation referenced and, whilst I will not be referring to every event and email or reference every case law presented, I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing.

The following is a brief summary of the chronological events:

August 2015 the complainant sustained an injury and a period of absence ensued.

Early 2016 the complainant was moved to work in a training room

March 2016 the complainant reminded the respondent of a pre-existing eye complaint.

April 2016 the complainant was advised that his position was to be made redundant.

May 2016 a conciliation conference took place regarding the respondent’s rationalisation agreement

Between 2015-2017 the complainant attended various health specialists

Between 2016- 2017 ongoing meetings between SIPTU and the respondent to resolve matters

March 2017 mediation between the parties in an effort to resolve matters but no resolution

March 2017 complainant raised a grievance that 2 employees had personalised issues with the complainant

October 2017 complainant advised the grievance was not upheld

November 2017 complainant appealed decision of grievance

November 2017 complainant advised that his appeal of the grievance decision was not upheld

April 2018 the complainant lodged a claim under the Industrial Relations Act to the WRC about his grievance.

November 2018 a WRC Hearing was to be held but discussions took place between the parties and the complaint was withdrawn.

November 2018-April 2019 ongoing discussions between the complainant and respondent to reach an agreement.

26 April 2019 the respondent advised the complainant an agreement between them could not be executed owing to the complainant’s behaviour

3 May 2019 the complainant advised he was fit to return to work

3 May 2019 the respondent advised that they were not in a position to confirm a return to work date

14 May 2019 the complainant arrived at work

16 May 2019 the respondent proposed seeking one final meeting to finalise an agreement.

17 May 2019 the complainant sought clarification on the agreement.

6 June 2019 the complainant was dismissed

19 June 2019 the complainant requested an appeal of the dismissal

5 July 2019 the respondent advised that the matter was finalised.

The respondent confirmed that the complainant had been dismissed and the respondent’s history with the complainant was submitted and is referenced in the background of this decision. It was submitted that the respondent had made efforts to engage with the complainant to reach agreement but it was apparent that the complainant had no wish to meaningfully engage in the process. The respondent submitted that they had provided a significant level of support to the complainant over the years with various medical professionals, creating a role to allow the complainant to remain in gainful employment, engaging with the complainant to resolve his grievances and to hear his appeal of same, attending and paying for an external mediator which was chosen by the complainant’s representative and attending WRC hearings.  The complainant’s failed to recognise his unreasonable behaviour which ultimately led to a fundamental breakdown in relationships. 

It was the respondent’s submission that a reasonable employer, in the same position and circumstances, would have acted the same as at the core of any contractual relationship is trust and confidence which did not exist in this instant case. The respondent had insufficient confidence in the complainant’s ability to behave in a manner which was conductive to an effective employment relationship which goes to the root of the contract of employment.

A high level of support had been provided to the complainant but the complainant failed to adhere to reasonable instructions and efforts and despite mediation to resolve the complainant’s grievances and a full investigation into his disputes, the complainant’s behaviour was so unreasonable that the respondent had to withdraw proposed terms of agreement.   The complainant’s behaviour was such that he had become very difficult to manage and was consuming an inordinate amount of management time. In effect, the bond of trust between the complainant and the respondent had completely broken down and the only reasonable option was summary dismissal.

It was further submitted that reinstatement was not appropriate in the current circumstances owing to the break down in the relationship between the parties and downsizing within the organisation. The respondent also submitted that the complainant had failed to expand his job search beyond his area of expertise and it was unreasonable for the complainant to remain unemployed when the economy is at near full employment.

Case law cited included Looney & Co Ltd v Looney UD 843/1984, Structured Finance Management Ltd v Vadym Kakini UDD181, Murray v Meath County Council UD 43/1978, Sheehan Continental Administration Co, Burke v Superior Express Ltd.

The complainant’s history with the respondent was submitted and is referenced in the background of this decision.

The complainant submitted that despite an internal investigation into matters that arose during the complainant’s employment; there remained many unanswered questions including why it had been planned to terminate his employment under the cloak of redundancy, why were collective agreement ignored, why did the respondent look for the complainant to take up a position that was not conductive to his health, why could the complainant not revert to his former position in maintenance, why was he isolated from employee with no effort to accommodate him, why was confidentiality compromised and why were there attempts to interfere with his pay. It was submitted that the isolation had impacted on his health and well-being. It was submitted by the complainant that the reason why the complainant had been targeted was due to a personal injury claim and events that followed thereafter indicated that the respondent was focussed on terminating the complainant’s employment.

There had been previous attempts between the parties to resolve ongoing matters including availing of mediation but no progress was made. When the complainant submitted a grievance that was to be heard through the WRC in November 2018, parties again entered into discussions in an effort to resolve the issues and the complainant had withdrawn his dispute. However it was outlined that the respondent had failed to commit to aspects of the agreement and to give the necessary reassurances to the complainant. The complainant submitted that he was dismissed without any disciplinary process having been instigated or followed and that the dismissal arose as a result of the complainant not accepting the respondent’s terms of a termination agreement or any formal process.

The respondent did not engage in any disciplinary process and the complainant was denied the right to natural justice and was refused his right of appeal. The sanction of dismissal was grossly disproportionate to the circumstances and indicates a predetermined outcome from the outset. The complainant submitted that he sought reinstatement and that he has not secured employment to date. The complainant confirmed that he has sought employment regularly but has not been successful. It was submitted by the complainant that he had not registered with any recruitment agency as he did not know how to do that and that he is engaged in a course so has limited availability to seek employment.

Case law included Kerry Foods and Aisling Ryan UD/16/52, IT Tutor and A Community Training Organisation ADJ-00019429, Frizelle v New Ross Credit Union [1997] IEHC 137, Tesco Ireland v Laura Gannon UD2114/2010.

It was not disputed that the complainant had been dismissed. The complainant submits that the dismissal was unfair and the respondent submits that they were left with no alternative but to terminate the complainant’s employment owing to :

“… conduct over the last number of years has resulted in the company losing all trust and confidence in you which is necessary for the employment relationship to function, which amounts to the substantive reason for your dismissal”.

Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides:

“(1) 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.

…

(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) not relevant

(b) the conduct of the employee

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

It is clear that the relationship between the complainant and the respondent had become fractured albeit not completely broken as it was submitted that both parties agreed to engage with a mediator but no agreement could be reached.   The complainant clearly has been unhappy with the answers he received following a grievance and an appeal and referred to them numerous times at the hearing. Following submission of a claim to the WRC for a hearing which was to take place in November 2018, parties again sought to reach agreement.   The nature of reaching agreement between parties is that it relies on ‘agreement’ and it is clear that the parties could not reach agreement in the to-ing and fro-ing that took place after November 2018.   Both the respondent and complainant submitted that the failure to reach agreement was the fault of the other party. I have examined the extensive emails between parties and what is clear is that no agreement was reached. The complainant then sought to return to work and the respondent terminated his employment and denied the complainant any opportunity to appeal.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet,UD1294/2008. Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited[1973] IR 388, also detailed:-

"This court in re Haughey[1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

The court in Glover v BLN Limited(1973) IR 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. It is quite clear from the case law of the superior courts, that there is no fixed standard of natural justice which lays down how certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances.  Furthermore, Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case.   In that case, Keane J. stated that the two principles of natural justice, namely “audi alterem partem and nemo iudex in causa sua cannot be applied in a uniform fashion to every set of facts”. Therefore, while employers are required to afford natural justice and fair procedures to employees when carrying out disciplinary procedures, regard must be had for the particular circumstances of the case to ascertain what the requirements of natural justice and fair procedures demand in the particular circumstances. If the process followed by the employer, while not entirely faultless, is within the scope of what could be considered a reasonable response in the particular circumstances, then the employer's actions will be deemed to be acceptable.

There are certain fundamental requirements of fair procedures as outlined in Glover v BLN Ltd [1973] IR 388 (and referenced in Kolsaran Concrete Kilsaran International Ltd v Vitalie Vet [2016] 27 E.L.R. 237)

“that cannot be dispensed with, regardless of the particular circumstances that arise in an individual disciplinary matter. They include:

(i)                  the requirement to make the employees who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;

(ii)                (ii) the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process;

(iii)               and (iii) in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.” 

In the instant case, the respondent did not make the complainant aware that he was the subject of any investigation that might result in his dismissal; did not follow the respondent’s own disciplinary procedures which includes “you will be given the opportunity to respond and to state your case at all stages”, and the respondent imposed a disciplinary sanction that was not proportionate in the above circumstances.

The Labour Court has set out in UDD181 Structured Finance Management Ire Ltd v Vadym Kalinn out that “circumstances in which the decision to dismiss, do not stand in isolation of other events that had taken place in the employment over many years involving the Complainant” and it is clear that some aspects of this but not all, applies to this instant case. It is very evident from the emails between the complainant and respondent that the complainant was increasingly occupying management time and resources and while some of the queries raised by the complainant appeared to be genuine; I did not get a sense that the complainant was fully committed to resolving issues with the respondent and the complainant’s behaviour, therefore, contributed to his dismissal.

In all the aforementioned circumstances, I find that the dismissal was unfair and that the complainant contributed to this dismissal by 20%.   With regards to redress I note that the complainant has sought reinstatement which the respondent objected to. In the circumstances I decide that compensation is the appropriate form of redress having regard to all of the circumstances of this case.   With regards to mitigation, the complainant remains out of work and I am not satisfied that his efforts to mitigate his loss meet the standards of Sheehan v Continental Administration Co Ltd (UD 858/1999) in that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

The complainant was earning €546 per week, and up to the date of hearing his loss of earnings were €20,202. I find that the future loss of his earnings taking into consideration that he may struggle with securing employment when he adequately attempts to do so, and the complainant’s failure to mitigate his loss are balance themselves out and as I find that the complainant contributed to his dismissal by 20%, I award the Complainant compensation to the sum of €16,200.

I find the dismissal was unfair and I order the respondent to pay to the complainant the sum of €16,200 which I find is just and equitable in all of the circumstances

Unfair dismissal