Complainant

Respondent

Anonymised Parties

A Craftsman

A Public Sector Employer

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-00031092-001

24/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031092-002

24/09/2019

The issues in contention concern the alleged Unfair Dismissal of a Worker on grounds of serious misconduct and the follow-on Non-payment of Notice by a Public Body.

1:1       Unfair Dismissal complaint CA - 00031092-001

The Complainant had been in the employment of the Employer since 2006. In late 2018 serious financial difficulties arose between older members of his family and a Criminal Gang. The Complainant was credibly informed that unless he repaid the monies owed to the Gang either he or the members of his family would be shot. Armed members of the Gang visited his home. Guns were produced. Idle threats were not being made. He went on Sick leave in February 2019.

To raise funds the Complainant was forced to sell his house and pay off the Gang. To protect the youngest member of the Family he absented himself and his family to Spain beginning in March 2019. He offered to send Sick certs from Spain, but the employer refused to accept these. It was pointed out to him that as an employee of the Public Body he was expected to reside within a reasonable distance of his work. Spain was clearly not this.

Various phone calls and emails were exchanged which culminated in a letter of the 5th July 2019 from his employer informing him that he was to be dismissed on the 16th August 2019. An Appeal hearing was arranged for the 31st July at which the Dismissal decision was upheld on the grounds of Gross Misconduct arising from Unauthorised Absence.

The Complainant, through his Representative made the following points

The Respondent proposed Dismissal letter of the 5th July 2019 was a completely pre-emptive action. No Natural Justice had been followed and the Rules/Steps of the Respondent’s own Disciplinary Policy had been ignored. It was Procedurally a completely flawed letter.

The Complainant was never afforded any opportunity to present his case or to make arguments in his own favour. The procedural flaws continued into the Appeal hearing.

At the conclusion of the Appeal Hearing it was unclear on what grounds he had been dismissed – there was a considerable degree of confusion between the Dismissal Letter – Long Term Unavailability for Work and the Disciplinary hearing Outcome Letter-Gross Misconduct.

Natural Justice was notably absent from this entire case. Considerable case law was cited in support.

Leaving aside the Legal and Procedural points above the Penalty imposed was completely Disproportionate to the alleged offences committed particularly in an organisation that has a reasonable number of employees with problematic attendance records far worse than the Complainant.

It is also important to point out that the Employer’s own medical Occupational Health Assessor, in a report from the 26th June 2019 was quite sympathetic to the Complainant due to his “Significant symptoms of stress”. This Report seems to have been largely ignored by the Employer.

On Adjudicator inquiry the Complainant stated that he could not have gone to seek the assistance of the Gardai nor seek their assistance in giving supportive evidence in an Employment context as to do so would have resulted, he was convinced, in the fatal shooting of one of his sons. He was also very concerned about information leaking from his employer to undesirable quarters. The makers of the threats against him had been very clear as to the negative consequences for him and or his sons of involving the Gardai.

1:2       The Minimum Notice Complaint: CA-00031092-002

This flows from the “Gross Misconduct” Unfair Dismissal. The Dismissal could not be considered by any reasonable stretch “Gross Misconduct” and a claim for Minimum Notice is well founded.

2:1       Unfair Dismissal complaint CA - 00031092-001

The Complainant absented himself from the 18th February and remained absent until the date of dismissal. Considerable efforts were made by the Respondent to make contact and seek an explanation. It became clear that he was, in effect, residing in Spain for most of the early part of the year. It was sonly on the stopping of his weekly wages in April that the Complainant contacted the employer. The details provided to the Respondent were patchy, a few phone calls and an exchange of email followed in May and especially June. All supports available to employees were identified to the Complainant and the requirement to reside at a reasonable distance from his palce of work was clearly pointed out. Living in Spain was simply not a realistic proposition. It was also drawn to his attention that he was, in addition to the residence issue, also in flagrant breach of the Respondent sick & absence policy.

By late June it was clear that the Complainant was not likely to return for at least another few months – Occupational Health Report 26/06/2019 refers – and seemed likely to remain resident outside of Ireland.

On this basis the letter of proposed Dismissal of the 5th July was written on the basis of his “Long term unavailability for work”. An Appeal was offered, in keeping with all procedures and policies. The Complainant was professionally Represented by his Trade Union. The appeal was unsuccessful.

In summary the Complainant had removed himself from Ireland for a considerable period, had offered few explanations and his breaches of the Sick Absence/ Attendance policies amounted to Gross Misconduct.

2:2       The Minimum Notice Complaint: CA-00031092-002

Gross Misconduct dismissals do not warrant Notice Payments - accordingly none were paid.

3:1     Unfair Dismissal Complaint:       CA-00031092-001

Opening Comments:

This case was unusual and is sadly reflective of major illegal drug / criminal difficulties in certain parts of Dublin City and surrounding Towns. The regular news reports of criminal related murders are evidence enough. From the oral evidence the Complainant clearly believed his family were in mortal danger.

On oral questioning as to why he had not sought the support of the Gardai he was also clear that the Criminal elements involved would have reacted immediately with fatal consequences for his family members.

Put simply a man does not sell his family home to repay a criminal debt incurred by his sons unless he genuinely believes that non payment will have fatal consequences.

However, this background detail aside the case is one of Unfair Dismissal and the first step has to be a review of the applicable law.

3:2     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle must be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines. The Employment Policies of the Respondent were Text Book and very compliant in this regard.

3:3        The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

         “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

Accordingly, in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness”.

3:4     Review of the Evidence both written and Oral.

Extensive written evidence was presented by both Parties and supported by considerable witness evidence at the Oral hearing. Full cross examination of the evidence and witnesses took place by the Legal and Trade Union representatives.

Having listen to all the oral evidence and carefully read all the documentation and extensive employment procedures I came to the view that a full and fair process had not been followed particularly in relation to the first “Warning of Dismissal “letter of the 5th July 2019. Much of this seemed to be due to the understandable frustrations of the Respondent Staff Officer with an employee living in Spain and giving, at best, sketchy information as to his medical and other circumstances.

The Complainant had certainly not helped his case by being less that forthcoming with details and residing in Spain for most of the period. However, he had made himself available for the Occupational Health review in Dublin on the 26 June 2019. He was available to come to Dublin and more meetings with the Employer could, it appeared to me, have been arranged.

In summary the need for a full face to face investigation, with allegations tabled properly and answers sought did not seem to have happened to a satisfactory level prior to the 5th July 2019.

All things considered, not following properly, for whatever reason, the basic principles of Natural Justice and or SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures are major weaknesses in the Respondent defence.

Carefully reading the minutes of the Appeal Hearing and hearing from the Parties involved on the day I again came to the view that the Hearing might have looked more closely at levels of strict compliance with the basic Natural Justice elements of the Employers own procedures. The fact that the outcome of Gross Misconduct for unauthorised Absence was different to the allegations in the 5th July letter of Long-Term Unavailability for Work I found hard to understand.

3:5     The Dismissal Decision and the “Band of Reasonableness”.

Regarding the decision to dismiss as opposed to a range of alternative lesser penalties I listened to the arguments of the Parties. I was also conscious of the Medical report of the 26th June 2019.

Here the Occupational Physician stated

"X is currently unfit for work due to significant symptoms of stress. As outlined above, it is likely that he will remain unfit for at least another three months. It may be worthwhile for HR to meet with X at some point in time to discuss his personal stressors to see if the Organisation can offer him any support with these.”

In Oral evidence the Respondent acknowledged that they had experience of several cases where their employees had become exposed to dangerous criminal situations. It was not an unknow territory and special arrangements had been made.

The Legal precedents on “reasonableness” in an Unfair Dismissal situation are well known since the British case of British Leyland v Swift in 1981 IRLR 91 – Lord Justice Denning. The principal thrust is that the decision to dismiss is realistically an employer function that Adjudication bodies should be very slow to interfere with. However, it is not an absolute Employer carte blanche and the Labour Court has in recent decisions (Morey v Dromina Community playgroup UDD 1715 April 2017) stated that

“If the decision to dismiss was not with the range of reasonable responses then there cannot be substantial grounds justifying the dismissal”

Similariy in Dudoit v Boyne Valley Foods UD737/2015 the then EAT referred to a dismissal in that case as a “Disproportionate response”.

In summary I had to come to the conclusion, having heard all the evidence, particularly the Oral evidence from the Complainant regarding his personal situation and the accommodating record of the Employer in previous similar cases, that a final Dismissal from his Employment was a disproportionate response.

3:6       Summary Conclusions

In brief I found that

1.       The procedures followed having regard to Natural Justice / SI 146 of 2000 and own employee rule book were not as they should have been. However, it has to be noted that the employee’s own low levels of co-operation were not helpful to his case.

2.       None the less and bearing in mind the exceptional Personal situation of the Complainant a Dismissal was a Disproportionate penalty.

Accordingly, I find that the Dismissal was Unfair.

3:7         The Minimum Notice Complaint: CA-00031092-002

As the Dismissal was deemed to be unfair the Minimum notice claim is well founded, and six weeks payment is due under this heading.