Complainant

Respondent

Anonymised Parties

Senior Technician

Refrigeration Engineering Company

Representatives

Sean Heading Connect Trade Union

Conor Bunbury Bunbury Darcy Solicitors

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-00038465-001

01/07/2020

The Complainant commenced employment with the Respondent as a Refrigeration Engineer on 10 February 2000. His weekly salary for a 44-hour week was €858.00; net €646.  The Complainant submits that he was unfairly dismissed by the Respondent on 29 May 2020. Dismissal is not in dispute, and in those circumstances, it is for the Respondent to show that the dismissal was fair. The Respondent denies the complaint and asserts that at all times it acted fairly and reasonably in the dismissal of the Complainant for reason of gross misconduct.

The Respondent company manager Mr A gave evidence that the Complainant, though initially a promising worker and a potential candidate for a supervisory position, became disgruntled in later years and he found him becoming increasingly unhappy. This disgruntlement resulted in erratic behaviour which, over time, became injurious to the company’s interests. He gave evidence that the Complainant was regularly seeking a review of his pay but more seriously that he engaged in episodes of gross misconduct which threatened not only to the Respondent’s business but also became worrying to his colleagues. These included a physical and verbal altercation with an apprentice in June 2018 which resulted in a written warning for a finding of bullying an apprentice and a verbal warning in June 2019 for using profane language in an altercation with a customer. Mr A accepted in evidence that both warnings were no longer current and were deemed to be ‘disregarded’ as per the Respondent’s disciplinary handbook.

Mr A gave evidence that the incident that led to the Complainants dismissal had its beginnings during the period of the Covid 19 lockdown in 2020. The Respondent’s business was greatly restricted, and the staff were furloughed. However, in April 2020 work became available in Belfast and this was offered to the Complainant by the Operations Manager, Mr B, in a series of phone calls and email exchanges. Mr B was not in attendance to give evidence on these exchanges, but the Respondent exhibited copies of the emails.

Mr A gave evidence that the refusal to take up work by the Complainant was a disciplinary matter. Mr A attests that the Complainant initially accepted the work but then refused, ostensibly citing a number of concerns regarding health, accommodation, currency rates and quantity of site personnel.

Mr A gave evidence that he did not consider it appropriate to have a formal investigation on the matter but to initiate instead the disciplinary procedure. At this time, the Respondent submits that it had knowledge of attempts by the Complainant to coerce colleagues not to take up offers of work. Mr A gave evidence that this allegation also became a subject matter for the disciplinary process. Mr A stated that the Complainant was allowed representation by his trade union representative and was afforded the opportunity to state his case at the meeting. Minutes were taken at this meeting and copies of agreed minutes were exhibited at the hearing.

Mr A gave evidence that it was the decision of the Respondent to dismiss the Complainant after the disciplinary hearing. The documentary evidence of a copy of the dismissal letter/email was attested to by Mr A. It stated that his refusal to return to work and that the probable attempt to influence other employees to refuse to return to work, constituted gross misconduct which warranted dismissal. The letter was signed by Mr B and the Complainant was invited to appeal the decision to Mr A if he so wished.

Mr A heard the appeal but upheld the decision to dismiss. He gave evidence verifying the contents of the appeal decision letter to the Complainant.

In conclusion, the Respondent submits that it had legitimate and reasonable grounds to take disciplinary action against the Complainant. The Respondent contends it engaged in a fair and reasonable process in that disciplinary action. The Respondent asserts that it made a reasonable and fair decision to terminate the Complainant’s employment in all the circumstances.    

The Complainant submits that that the Respondent acted unreasonably in the decision to terminate his employment, that it failed to provide supporting evidence for the allegation of a refusal to return to work and a further allegation of encouraging others to act similarly. The Complainant further submits that the Respondent did not observe fair procedures when dismissing the Complainant.

The Complainant submits that he showed exceptional leadership and was a good time-keeper. He had recently received a performance voucher and represented the Respondent company in March 2019 at a local careers’ day event, which was displayed on the Respondent’s Facebook page.

On the events that led to the dismissal the Complainant gave evidence that he, like other employees, was laid off and receiving Covid-19 social protection payments during the pandemic when Mr B, Operating Manager for the Respondent phoned him on 15 April 2020 and offered him work commencing in Belfast on 20 April 2020. The Complainant submits that he initially accepted the offer but contacted Mr B again to say he had acted hastily and wanted clarification on a number of questions relating to the new work.  These queries related to logistical, accommodation and health issues surrounding Covid-19. He told Mr B in an email of 15 April 2020 that he was not refusing work but otherwise seeking clarity and that he had his own health and that of his family to consider. Mr B responded on 22 April relaying the company position which stated that the Respondent identified the matter as a refusal to return to work and that the Respondent is now treating the matter as a serious disciplinary issue.

A disciplinary meeting took place on 21 May 2020 where the Complainant was accompanied by his trade union representative. The meeting was chaired and conducted by Mr B. The Complainant submits that he again stated to Mr B that he had not refused to return to work but had merely sought re-assurances regarding the work offered in Belfast. At this meeting Mr B advised the Complainant that he was the subject of a separate investigation which alleged he had attempted to encourage others not to return to work. The Complainant submits that Mr B failed to provide any further information nor the identity of those whom he claimed were making these allegations. Mr B subsequently issued the dismissal letter.

The Complainant gave evidence that he attended an appeal hearing on 10 June 2020 with the Respondent managing director, Mr A. where the ultimate decision to uphold Mr B’s decision to dismiss the Complainant was made.        

The Complainant submits that the procedures used by the Respondent in the dismissal were procedurally flawed. Mr B’s version of events were preferred over the Complainant’s version of events because it was Mr B who conducted the disciplinary process and issued the dismissal decision. The Complainant submits that Mr B could not possibly find against himself in a conflictual issue on the account of events.  The Complainant contends that Mr B could not have been objective in his deliberations or independent in the conduct of the disciplinary hearing.

 The Complainant submits that the appeals process was also flawed. Mr A stated in his decision that he had spoken with Mr B “.and others.”. The Complainant contends that that he was not aware of ‘others’ with whom Mr A ‘consulted and discussed the “…incident and circumstances surrounding it” and so was not given the opportunity to question or rebut their version of events.

In conclusion, the Complainant asserts that dismissal was an unreasonable response to the Complaint’s valid queries on the work offered in Belfast during a the Covid-19 crisis and that the allegation on inciting others not to return to work was untrue. Furthermore, the Complainant asserts that the Respondent failed to carry out a fair and impartial investigation and disciplinary procedure.

Applicable Law:

Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states, in relevant part, as follows:

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… (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, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provides:

“(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.”

S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), provides that:

“The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.”

In determining whether a dismissal of the Complainant was unfair, I must examine whether the Respondent has discharged the burden that the decision to dismiss the Complainant fell within the range of reasonable responses that a reasonable employer could adopt. Furthermore, the Respondent must show that the procedures adopted by the Respondent that resulted in the decision to dismiss were fair and that the conduct was that of a reasonable employer.  

The band of reasonable responses test was considered by the Irish High Court in Bank of Ireland v Reilly [2015] IEHC 241. In Reilly, Noonan J. highlighted that s.6(7) of the Unfair Dismissals Act 1977 provides that a court may have regard to the reasonableness of the employer's conduct in relation to a dismissal, and stated:

“That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In relation to s.6 of the Unfair Dismissals Act 1977, Noonan J. in Reilly highlighted the onus that is on the employer to establish that there were substantial grounds justifying a dismissal, and that the dismissal resulted wholly or mainly from a matter specified in s.6(4) of the 1977 Act, which includes the conduct of the employee.

The reason for dismissal was stated by Mr B for the Respondent in the letter of 29 May 2020 at the relevant passage, as follows: 

“…the company remains deeply disappointed at your refusal to return to work and whilst noting your denial of doing so, considers it more/likely probable that attempts were made to influence other employees to refuse to return to work as well. Furthermore, this not the first instance where your behaviour has been called into serious question and caused the company significant difficulties and previous incidences of gross misconduct cannot be ignored…”

Mr A, the Managing Director gave evidence on the validity of the letter, but Mr B had since left the company and was not present to give direct evidence on the disciplinary process nor the conflict of evidence regarding what transpired regarding the purported refusal of the Complainant to accept work in two calls with the Complainant. The Complainant attested that he never refused work in the phone conversations but instead sought clarity regarding a number of operational and health issues prior to taking up the position of work. In the absence of no direct evidence from the Respondent refuting the Complainant’s version of the content of the phone calls, I must accept the Complainant’s evidence on this as plausible.  

I can rely on the contents of a sequence of emails between Mr B and the Complainant to give a clarity on the exchange between the Respondent and the Complainant. It is common case that the events described occurred during the Covid -19 pandemic, that the Complainant was furloughed at the time and that the Complainant was offered work in Belfast on 15 April 2020, to commence on 20 April 2020. It is also common case that the Complainant initially accepted the work but came back later that day, and the following day, with emails to suggest that he was hasty in his initial acceptance. The contents of the emails suggest that his return to work was conditional on Mr B clarifying these issues. The Complainant subsequently apologised in an email for, on the face of it, was a quarrelsome response by the Complainant. It is clear from the email exchange that the Complainant was not adopting an agreeable approach to the offer of work but neither could I find a clear refusal to return to work. Mr A, in evidence, could not give a clear indication of what he perceived to be the categorical refusal to return to work in the text of the emails.  

The Respondent immediately initiated a disciplinary process without any investigation. Mr A attested to the fact that in the employee handbook there is quite a detailed paragraph on investigations but that investigating a matter was discretionary and that in this instance it was decided not to investigate the alleged gross misconduct. When pressed further, Mr A could not give a plausible reason as to why there was no investigation in this instance. Mr A accepted in evidence that he was involved in the decision not to have a formal investigation as normally afforded to employees under the Disciplinary Procedures.   

At the disciplinary hearing a further charge of gross misconduct was put to the Complainant -that of inciting fellow workmates not to return to work. The Complainant gave evidence that no details of this charge nor investigation were made available to him. Mr A gave evidence that he would not disclose the identities of those making the allegations nor further details of the charge other than to say that he believes the allegation was credible and that people were afraid to have their names disclosed. The Complainant gave evidence of contacting work colleagues around that time stating that it was a natural convivial thing to do but when cross-examined, could not give further detail on the content of these discussions.  

The Respondent both at the hearing, and in the dismissal letter, referred to past incidences of gross misconduct by the Complainant. These included a bullying complaint in 2018 which warranted a sanction of a written warning, leaving a job without permission in 2019 where no sanction was and further a verbal altercation with a customer in 2019 where a verbal sanction was imposed. The Respondent has a very equivocal approach to what constitutes gross misconduct.  Furthermore, there is no certitude as to appropriate sanctions. I find that this method of sanction to be arbitrary, inconsistent and not in keeping with the Respondent’s own disciplinary procedures. When examined, the conclusion I come to is that lesser sanctions were imposed by the Respondent in the past for, what on the face of it, were more grievous incidents. This fact alone suggests that the decision to dismiss for a purported refusal to return to work during the Covid-19 pandemic, was disproportionate.   

 I am satisfied upon examination of the email exchange and the overall evidence in this case that there was no clear evidence given by the Respondent to discharge the burden of proof that the dismissal was a reasonable response. Given the exceptional circumstances pertaining in the world of work during the Covid-19 pandemic, the health concerns of the Respondent in travelling to another jurisdiction should have at least been considered. Furthermore, I find it extraordinary that there was no investigation in a case which ultimately ended in dismissal. The Labour Court in T.E. Laboratories Ltd v Jakub Mikolajczyk ([2019] 30 E.L.R. 198 stated that the guidelines in relation to disciplinary investigations in the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. No. 146 of 2000) are “not without reason” and are so that “facts can be separated from suspicion and rumour and explanations can be offered by anybody who could, potentially, be facing a disciplinary process”.

A second charge of inciting others not to work was not properly investigated nor was there any supporting evidence on this charge submitted by the Respondent at the hearing. This charge was devoid of any examinable reality for adjudication purposes.  I cannot decide as to the merit or not of this accusation, but the manner of its inclusion, at the actual disciplinary hearing, and without investigation, clearly suggests an unreasonable approach by the Respondent. After considering all the evidence, I am satisfied that the Respondent has not discharged the burden that the decision to dismiss the Complainant fell within the range of reasonable responses that a reasonable employer could adopt in this case.

I also conclude that the Respondent did not adopt fair procedures. There was no meaningful investigation of the charges against the Complainant.  Mr B initiated the disciplinary process and chaired the disciplinary hearing even though his interactions with the Complainant were central to the allegations of gross misconduct. Reports of an ostensible second investigation relied on unidentified witnesses whom the Complainant was never allowed to cross-examine.  Evidence was given that Mr A was an active participant in the decision not to investigate the claims, but he ultimately heard the appeal. Some other person other than Mr A should have heard the appeal to allow the objectivity necessary for fair procedures.

I conclude that the Respondent’s decision to dismiss the Complainant did not fall within the range of reasonable responses that a reasonable employer could adopt and furthermore, that the Respondent did not utilise fair procedures in conducting the dismissal. I therefore find that the Complainant was unfairly dismissed.        

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

[(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

The Complainant submitted that he is seeking compensation for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. He submitted that his net pay from the Respondent was €646.00 per week. The Complainant submits that he made every attempt during the Covid crisis and secured employment within five weeks of the dismissal on 6 July 2020. I estimate the loss for the first five weeks as €646 X 5 = €3230.  He submitted documentary evidence of payslips in advance of the hearing showing a payslip for Company Y for earnings of €534.70 per week from 6 July 2020 to 15 September 2020.   The loss is €112 X 10 = €1120. He took up employment with Company Z from 15 September 2020 to the present. The payslip submitted gave earnings as €631.00, giving a loss of €15 per week.  The Complainant admitted in evidence that he is presently earning more than he previously earned at the Respondent company but submitted no documentary evidence to this effect nor proof of when his pay status changed prior to the hearing, or at the hearing itself. I estimate the loss to be up until year’s end of 2019 at €15 X 15 = €225.00.  

Section 7(3) of the Act allows me to consider “…any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2014, or in relation to superannuation.” Evidence was given in this case that the Complainant had 20 years unbroken service with the Respondent. I find that the Complainant will have a prospective loss of rights with regards to any future redundancy situation that may arise, and I would put a value on this prospective loss at €3000.

Having regard to all the circumstances in this case, I find that the appropriate compensatory sum to be €8,000.

I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay the Complainant compensation of €8,000.

Unfair Dismissals Act 1977, Gross Misconduct, Fair Procedures, Covid-19