ADJ-00022455

Complainant

Respondent

Anonymised Parties

A Mechanic

A Transport Business

Representatives

Appeared in Person

David Gaffney, Gaffney Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00029083-001

16/06/2019

On 16 June 2019, the complainant, a Lithuanian National submitted a complaint of unfair dismissal against his former employer of 6 years.

The Respondent denied the claim and make a preliminary approach to resolve the matter with the complainant. This was not acceptable to the complainant, and the case proceeded to a full hearing as planned. The complainant submitted that he saw justice in being heard and he required a “Paper Decision “I was happy to accommodate this.

The Complainant, a Lay Litigant prepared a written submission to which he added oral arguments.

The Respondent, represented by David Gaffney, Solicitor also prepared a booklet of documents which were exchanged.

The Complainant submitted that he had found new work on 18 February 2019 on a less favourable pay rate.

He the Respondent operates a Transport Company. The Solicitor on behalf of the company outlined that the practice of out of hours work was an integral part of the business for over 40 years and intrinsic to the company reputation.

At first, the company wished to resolve the case directly with the complainant on a without prejudice basis. They accepted the complainants reality when this approach was rejected.

The Respondent denied that the complainant had been unfairly dismissed and submitted that the complainant had been dismissed for gross misconduct. The Complainant secured new work two weeks later which compared favourably to his earlier salary. Given the payment of two weeks’ notice on his departure, the complainant had not sustained a loss.

The Respondent contended that the complainant had engaged in out of hours work in 2016/17 and 2018 until his sick leave in October 2018. The service was required over 52 weeks per year.

The Respondent confirmed that the complainant had engaged in the majority of this call out service, but this was revised during the complainant’s sick leave and two more employees were added to the rota for safety reasons.

The Respondent communicated this revision to the complainant on his return to work, but he adopted an obstructive attitude by demanding retention of his portion of the rota and consequently refused to take up the revised work pattern.

The Respondent had sought an explanation for his stated difficulty in accepting the revised roster and was unable to secure a reasonable response.

The Respondent exhibited the contract of employment signed by both parties on 21 September 2012 and emphasised the following clause:

“The employee may be required to work such further hours as may be necessary to fulfil his duties or the needs of the business. Whenever possible, responsible manager will give the employee reasonable notice of any additional hours ….

The employee agrees that his average weekly working hours may be more than those prescribed by law (the waiver). The waiver will remain in force indefinitely, but the employee may give the employer not less than three months’ notice in writing of his intention to terminate the waiver “

The Respondent took the hearing through the progression of correspondence and meetings in the case.

On 21 January, the respondent received an emboldened declaration from the complainant:

“As discussed with Mr A on 3 January, sadly, I must inform you that, I am not available for out of hours service arrangement, due to personal problems. I apologise for any inconvenience caused “

The respondent sought to justify the transition to the 10-week cycle for health and safety reasons and the complainant was invited to action a grievance to Mr B if he was not satisfied. The Complainant was requested to outline the nature of his stated personal problems.

the respondent ran into difficulty during the first week of the complainants out of hours roster, he failed to cover, and a colleague had to step in. The complainant was requested to work under protest pending a “detailed description of any issues “

The complainant was reminded of his contractual obligation to supply the service and failure to provide the service would result in disciplinary action. The complainant addressed Mr A in response “Are you going to mind my children?”

Mr A rep-lied that the complainant held personal responsibility for childcare to which the complainant asked when he was being fired? Mr A confirmed that further refusal to participate in the out of hours roster would warrant disciplinary action.

The Complainant persisted in his refusal to undertake the service and he was invited to a disciplinary hearing on 1 February with the Managing Director to address the allegation of:

“You have persistently failed and/or refused to provide cover for the out of hours breakdown service and have provide very little information or reasoning for such a failure and/or refusal …

You are entitled to have a representative present at such a hearing is a colleague or other person as you see fit. An opportunity shall be afforded to you at the meeting to rebut the allegations against you “

This was underpinned by an extract from the company procedures on a definition of gross misconduct. The complainant was advised that should the allegations against him prove to be founded appropriate disciplinary action up to and including dismissal would follow.

The parties convened on February 1, 2019 and the complainant presented alone. The Respondent submitted that they were not satisfied with the complainant’s explanation for non-adherence to the out of hours work and decided to terminate his employment for gross misconduct.

On 11 February, the complainant furnished an appeal of the decision and was heard by Ms A, office Manager on 21 February. On this occasion, the complainant attended with an Associate and presented his appeal in writing.

At the request of the Appeal Officer, he was requested to clarify with whom he had made agreement on the 30 weeks of breakdown service and he was furnished with his contract of employment.

On 28 February 2019 the complainant clarified that Agreement had been made with Mr A and Mr B. He made a further submission that out of hours service was not part of his contract.

On 1 March 2019, Ms A upheld the decision to dismiss the complainant

“Having considered the matter in detail, I have decided to uphold the decision to terminate your employment by reason of gross misconduct because of your refusal to carry out your duties under protest. You failed and/or refuse to address the matter by means of the grievance procedure which is available to all employees. I considered lesser sanctions, but unfortunately I do not believe a lesser sanction is appropriate in circumstances where you have made no effort whatsoever to resolve the matter with the company “

The Respondent submitted that the dismissal was fair based on the complainant’s unreasonable behaviour which amounted to gross misconduct.

The Complainant commenced work as a Mechanic on 3 September 2012. He signed a contract on 21 September 2012 but did not retain a copy at that time. He exhibited a copy in his written submission.

The Complainant has claimed that he was unfairly dismissed on February 8, 2019, receiving just two weeks’ notice.

His basic working week was 42.5 hrs for €722.00 with an overtime commitment. The complainant commenced an out of hours service commitment in 2014. This involved out of hours phone calls, attendance at breakdowns and repairs on weekly cycles for €200 extra base pay per week and €37 was paid per call.

This was initially staffed by a 5-person rota. When two employees left in 2016, the complainant took on the lion share of this out of hours service. He absorbed the work of the leavers on the firm assurance that this level of commitment would remain his indefinitely. This amounted to cover for 30 out of the 52 weeks annually.

The arrangement continued until the complainant became ill with a medical condition in October 2018 and he proceeded on sick leave for a period of 12 weeks. During this time, the complainant sent in documentation relating to his sick leave and he made enquiries regarding locum cover for the out of hours work and was assured that “all is ok”

The Complainant returned to work on 3 January 2019, Mr A, Operations Manager approached him and presented him with a marked revision in the out of hours roster, which had been augmented by two additional workers and the work was now to be divided by 5 and due to commence on January 28, 2019. This signalled a deterioration in the complainants’ conditions of employment and had occurred without consultation or agreement.

The Complainant met with Mr A later that day and enquired whether his hourly rate was to be upwardly adjusted arising from the loss of out of hours work and this was rejected. The complainant sought to explain that such a diminution in out of hours work would have a negative effect on his family life and it would compel his wife, a previously stay at home parent, to seek work. Mr a suggested that the complainant seeks a replacement for himself on the roster. This was firmly rejected by the complainant as not being his job to do this.

The Complainant submitted that he was prepared to carry out the out of hours service if he had enough work and pay to supplement his wife’s unemployment. His wife had not worked outside the home since 2012. It was not financially viable for him to work the 10 weeks of on call compared with the previous 30 weeks. He was also troubled to have laid out €15,000 on equipment over a 6-year period to undertake to this work, which was not refunded.

The Complainant did not make progress in seeking revisions in pay or hours and formally declared his unavailability for out of hours work which he confirmed in writing on 21 January 2019. The company insisted that he participate in the revised roster.

The Complainant received   correspondence from Mr A which reflected that he had indeed operated the majority of the out of hours service during 2017/2018 and the revision had been informed by health and safety considerations and the complainant was offered an appeal of the respondent requirements that he accept the revised roster .This concerned the complainant as it was accompanied by an extract from the staff handbook on problem resolution and workplace etiquette.

On 25 January 2019, the complainant met with the Appeals Officer, Mr B who was accompanied by Mr A. He explained that his reasons for non-availability for out of hours had already been solidly communicated to Mr A on 3 January and he re-affirmed that childcare of two children prevented him from taking this roster.

Mr B wrote to him on 28 January and re-iterated that he was expected to comply with the roster or face disciplinary action. The complainant was offered another opportunity to discuss matters as it was felt that he had not addressed “the submitted personal reasons “

The Complainant left work on 28 January and travelled home. He did not participate in the call out roster that evening or later that week.

On 29 January 2019, the complainant met again with Mr B.? He was disturbed by his insistence that he take on out of hours work when he had clearly absented himself from the work. The complainant confronted Mr B and asked him when was he being fired?

On 30 January 2019, the complainant was invited to a Disciplinary hearing under Gross Misconduct by Mr C, the Managing Director on February 1, 2019.

“The allegations against you are such that you have persistently failed and/or refused to provide cover for the out of hours breakdown service and have provided very little information ort reasoning for such failure and/or refusal “

The Complainant presented his own case and re-affirmed his personal problems in attending out of hours work. He argued that several requests made to access his contract had gone unheeded.

By back dated letter dated 5 February 2019, the complainant was dismissed from his employment on grounds of gross misconduct with two weeks’ notice.

The outcome summarised by Mr C:

You have persistently refused to carry out reasonable instructions issued to you, the consequences of which has resulted in operational difficulties. You have made no attempt whatsoever to explain yourself in any meaningful fashion.

The complainant submitted a written appeal of his dismissal. He contended that the allegations against him was unfairly levied and his pay had been reduced. He requested statutory notice of 4 weeks rather than the two weeks offered.

The Complainant attended an Appeal by Ms A on 21 February 2019. On this occasion, he brought a witness. He submitted that he had explained that due to a reduction in my breakdown van hours, his wife was compelled to start work to re-instate the family finances. This was the reason for his non-availability. He contended that there were other suitably qualified workers available to take his place and he had been treated on an unequal basis through his dismissal

On 25 February, he was requested to provide details of the date of agreement on 30 hours of breakdown assistance work within 5 days. He was provided with a copy of his contract of employment.

On 28 February 2019, the complainant furnished his response to Ms A. He detailed that Mr A and Mr B had entered into agreement with him that he could retain 30 weeks of out of hours service on condition that this became a permanent fixture.

He added that the out of hours service was not particularised in the contract of employment.

On March 1, 2019, the decision to dismiss the complainant was upheld.

The Complainant submitted that he was unfairly dismissed.

They chose to terminate my employment. Instead of leaving me just do my daily duties, not giving me prior notice to work last few weeks to prepare myself to leave. Just getting rid of a person that stands his ground lawfully.

The compliant submitted that he found new work on 18 February 2019, where a €200 differential per week arose in his salary. He sought the remedy of compensation.

During Cross examination, the complainant re-affirmed his reasons for his non-availability for out of hours work. He added that he understood that he had shared everything with Mr A in January 2019 and was frustrated with having to repeat everything.

He understood that the respondent was firmly intent on firing him and he did not stand a fair chance. He had merely prioritised his young children. He understood the principle of custom and practice. He confirmed that he had not appealed the direction to continue with out of hours work through the company grievance procedure.

The Complainant confirmed that he had applied for new work on 8 February 2019. He stated that he had been thrown out like a dog. He confirmed that the new work carried an out of hours commitment.

When asked if he would change anything? he confirmed that he would have stayed working with the respondent.

The Complainant confirmed that others had been released from the out of hours commitment.

This is a claim for Unfair Dismissal contested by the respondent. I have listened very carefully to the parties and have considered both oral and written submissions by them.

The decision I will make in this case is based on the provisions of the Unfair Dismissals Act 1977 and this is an important backdrop to the case.

Section 6 of which is of relevance:

Unfair dismissal.

6

6.— (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.

The respondent has chosen to rely on a defence contained in Section 6(4) (b) on conduct

(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) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

In this case, the burden of proof rests with the respondent to prove substantial grounds for dismissal. In addition, I may have regard to the following provisions of section 6(7) of the Act.

(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 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.

As a first step, I reviewed the contract of employment which was exhibited by both parties. This described the complainant as a Repairman and not a Mechanic. It did however contain an expansive paragraph on hours of work unusually detailed at 42.5 hrs per week.

The Employee may be required to work such further hours as may be necessary to fulfil his duties or the needs of the business, notice of additional hours was to be provided.

The employee agreed to a waiver on an average weekly working hour and agreed to provide at least 3 months’ notice of cessation of that waiver.

The complainant had no acknowledged difficulties in his employment prior to this issue. He had received a pay increase in 2018. I accept that he worked the out of hours rota for three participants, the lions share, from 2016 to October 2018. This amounted to a custom and practice arrangement. I have not been able to establish whether an agreement arose between the parties on this key disputed topic. No material evidence is in existence.

On assessment , I found the expectation of 30 weeks of cover to be excessive   by the respondent and one not accompanied by risk assessment .It could not be reasonably viewed as anything other than a stop gap arrangement .I noted from the payslips that the complainant had recorded 35 weeks of call out alone in the calendar year 2018 , where he was on sick leave for 12 weeks .He recorded earnings of almost €17,000 gross for this work. .

However, this working pattern was an intrinsic part of the complainant’s work. As a Mechanic, I am satisfied that the complainant understood that the respondent needed to provide this back up service. There was no evidence raised that he had expressed a difficulty with this duty previously. In fact, he had been omni present in the role during most of 2018. I cannot accept that the out of hours work was outside the contract of employment. There was provision to address any objection through the “waiver “clause.

Therefore, I conclude that the request made of the complainant to continue with out of hours cover, while reduced was reasonable.

The contract provided reference to a Grievance and Disciplinary procedure as part of the “Official Procedure “distributed to employees in 2008. I accept the complainant evidence that he was not au fait with these procedures. In addition, I accept that he was placed at a disadvantage by not receiving a copy of his contract until his appeal hearing had concluded. This was a serious omission on behalf of the respondent.

However, I must now examine whether substantial grounds accompanied this dismissal by the respondent?

The complainant had been absent from work due to sick leave for 12 weeks prior to January 3, 2019. It was mutually understood that the complainant had been replaced on the out of hours rota at this time. I asked the complainant if he was subject to any medical restrictions on his return to work and none were mentioned.

The complainant took issue with being approached so early post his return and confronted with a revised roster he felt unable to comply with. He immediately declared that he would cease cover if he could not be reinstated on 30 weeks cover or receive a revised salary. The respondent rejected this approach and insisted that the complainant take his place on the roster from 28 January 2019 at the basic minimum of a working under protest pending resolution.

I found the respondents approach to be reasonable as they endeavoured to explore the reasons submitted by the complainant for his sudden non-adherence to necessary undertaking for the business. I found his outright rejection of the suggestion that he finds a swap to be unusual.

The complainant in his evidence expressed a simple view, he could not do the task, nor should he be forced to do it if it harmed his family life. The employment relationship has existed for over 6 years at this point and I would have expected a more engaged response from the complainant. after all, he had been ever present in the role of out of hours work throughout 2018.

Instead, he declared his intended absence by letter without reference to the pre -existing agreement he relied on at hearing and without expansion of his family difficulties. The complainant was angry with his former employer and had a genuine belief that once he absented himself from the out of hours work, that should have been respected.

For my part, I find that the complainant stopped short of a proper engagement and negotiation with the respondent. He was provided with the resolution tools for this and in my opinion, acted to his detriment by an arbitrary declaration on an anticipated child-minding arrangement rather than a defined child-minding arrangement, so soon in the process.

On the other hand, the out of hours service had been running for 40 years and the respondent endeavoured to secure the complainants co-operation in its continuance. I am satisfied that the respondent followed fair procedures in seeking to engage with the complainant, when that engagement did not materialise, and when the out of hours service was abandoned by the complainant, the respondent moved to activation of the disciplinary policy.

It is important to reflect that mutual trust and confidence are the hall marks of any employment relationship and I would argue that both parties had an obligation to resolve this issue much earlier in the process. The complainant was provided with the terms of the grievance procedure and did not action this procedure, which may have led to a resolution. This was a clear omission on his behalf.

From my time with the parties, I noticed that the complainant was highly reliant on his written account of the circumstances of the case rather than the evidence adduced at hearing. I found that he failed to appreciate that the respondent needed out of hours cover and were prepared to negotiate a solution with him. As it is vital that an employee is heard in any disciplinary framework, I would advance that an employee must also hear and consider his employers requirements.

I have reviewed the Disciplinary procedure submitted via the complainant’s submission. I could not determine that this Policy originated at this Respondent, as it had a different font to that provided by the respondent in their grievance procedure.

However, I note that it was the Policy relied on by Mr C in his decision to dismiss the complainant.

I have a pronounced difficulty with the swiftness of the disciplinary procedure. The respondent did not follow their own procedure in investigating the contravention of company rules. This may have come to light sooner if the complainant had elected to take a representative to support him.

I was troubled by the term of provocation relied on by the complainant in his engagement with Mr B on 29 January 2019, I am satisfied that it was the complainant who first raised the topic of dismissal. This was provocative and a departure from respectful staff relations. It had no place in a conciliatory process and raised a presumption that the complainant was thinking of leaving the employment.

The respondent has submitted that the action of refusing to undertake the out of hours commitment amounted to gross misconduct as contained in their section 5.4.4 Policy. This section defines gross misconduct as “conduct so serious that it renders the employment relationship impossible “

The Unfair Dismissals Act does not define gross misconduct. In the EAT case of Lennon v Bredin, M160/1978 serious misconduct was referred to as:

We have always held that this exemption applies only to cases of very bad behaviour of such kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer, we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category

In applying this to the facts of this case, I note that the complainants core working hours were unblemished. The issue arose in extra curricular work and the defiance of a respondent request which became an order was firmly centred on the out of hours commitment, the lesser part of his work.

The respondent was faced with an absent employee on an important service to customers and the complainant was slow to advise of the personal reasons he relied on. These came into sharp focus at the time of dismissal as the complainant had confirmed that operational difficulties had arisen by the complainant’s absence and could not illicit an answer from the complainant as to why he had to absent himself from the out of hours if his wife, who did not work outside the home was available to care for the children? I appreciate that the respondent was therefore unable to evaluate this response properly.

I fully appreciate that a person may be considered to have repudiated his contract if he wilfully disobeys the lawful and reasonable orders of his master). Brewster v Burke and Minister for Labour (1985) 4 JIS LL98. However, I find this language rather archaic.

In the instant case, the complainant adopted a closed position in any attempt made by the respondent to resolve the matter amicably. This caused the respondent to accelerate through the disciplinary procedure to seek to maintain order and control against a backdrop of diminished trust in the complainant. However, I find in this, they were overzealous in the absence of an investigation in accordance with the company policies.

In addition, I found that the act complained of did not amount to gross misconduct and was capable of being addressed by a lesser sanction than dismissal. I note that the respondent did not have regard for the option of suspension which was detailed side by side with Investigation in their Policy.

I have placed a high level of importance on the unblemished part of the complainants 6 year working history and I note that the respondent did not consider this positive force in the decision taken to dismiss the complainant, neither did they consider the impact of the dismissal on the complainant. I was also struck by a clear absence of a “proportionality assessment “.

However, I have also placed a high level of importance on the unreasonable behaviour of the complainant in the face of a legitimate request to staff a long-standing emergency service, where he possessed a key skill, as a strong contributory factor in this dismissal. I have reflected on the complainant’s response that he had not witnessed an employee cease participation in this out of hours service previously. His only stated knowledge was when people left. I observed a pronounced discord between the parties on this point.

To conclude, the company procedures available to both parties were not utilised as designed and a request to co operate with a revision of roster ended in dismissal 4 weeks later. This was a regrettable outcome for everyone involved and a scenario which would have benefitted from a much earlier duty of candour on behalf of the complainant.

Notwithstanding the high level of contribution to his own demise, I find that the complainant must succeed in his claim for unfair dismissal. The respondent has not proved that substantial grounds accompanied the dismissal and there were serious procedural shortcomings in the application of company procedures, which were not remedied on appeal by a junior member of staff, not present at hearing. The respondent therefore cannot rely on section 6(4) (b) of the Act on this occasion.

The complainant was unfairly dismissed.

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.

I have found that the complainant was unfairly dismissed. He found new work within two weeks of leaving his employment.

The complainant submitted that the new job was paid €200 less per week. From an analysis of the pay slips submitted, I noted an hourly differential of €15.85 to a previous €17.00. However, the more recent employer paid a €136 weekly bonus. Having regard for 40 weeks worked in 2018, I have identified the complainants weekly wage with the respondent as €1,250 composite with the out of hours work and over time.

I have found no practical value in ordering any remedy outside compensation. The employment relationship is irretrievable.

I order the respondent to pay the complainant two weeks salary at €2,500 as compensation for unfair dismissal. This takes account of the significant contribution made by the complainant in his own demise.

Gross Misconduct