Complainant

Respondent

Parties

John  Tyrrell

Toga Freight Services Ltd.

Representatives

Tom Fitzgerald Unite the Union

 John Keenan, IR Consultant

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-00039202-001

17/08/2020

The Complainant was employed as a Warehouse Operative with the Respondent since 26th April 2018 and was paid an average weekly wage of €529. He asserts that he was unfairly dismissed from his employment on 6th March 2020 because he refused to work in accordance with the Respondent’s requirements that he change his contracted working hours.

The Complainant was initially engaged as an agency worker from 1st July 2016 before being employed directly with the Respondent as a Warehouse Operative from 26th April 2018.

The Complainant stated that the Respondent subsequently tried to change his rostered working hours without his consent and that there was no discussion with him around this. It was asserted by his representative at the hearing that this was a breach of his contract wherein it was stated that “The terms of contract herein may only change by mutual agreement between the parties or by operation/application of the laws of the Republic of Ireland/European Union”.

While he agreed to try the new rostered hours for a period, he informed his Supervisor at the end of the trial period that he would revert to working his contracted hours but would facilitate overtime when necessary. In particular, he stated that he had a difficulty with “working until finish” and wanted an agreement where he could finish at a set time if he was to agree to changing his hours.

It was also alleged that the Complainant tried to engage with the Respondent to discuss the changed hours and that a letter was sent by his trade union in this regard but that these attempts were dismissed by the Respondent.

In October 2019, he was informed by the Operations Director that he would face the prospect of disciplinary action if he did not agree to work the new rostered hours. The Complainant refused to do so however and following the conclusion of a disciplinary process, which his representative said was procedurally flawed, he was unfairly dismissed from the Respondent’s employment on 6th March 2020.

While the Respondent agreed that the Complainant’s stipulated hours in his contract of employment are 07 00 hrs to 17 00hrs, it was highlighted that the contract also stated that business requirements will have to be considered. Specifically, it states “However the employee accepts that should business requirements necessitate attendance and work performance outside of standard attendance, such requirements will be fulfilled”

The Respondent asserts that in accordance with this provision, there was an entitlement to alter the hours in the Complainant’s contract of employment which, due to business requirements, made it necessary to operate a two-team warehouse operation. This change was made in February 2019 and meant that the two teams had an alternate rostered turn: one with a finish time of 16.00 and the other with a ‘work to finish’ time. It was highlighted that this new rostering arrangement was implemented further to discussion with all of the staff involved and that all of the employees, with the exception of the Complainant, agreed with this change.

Further to the implementation of this new rostering arrangement, the Respondent’s Operations Director met with the Complainant on October 17th, 2019 because on the previous evening he stopped work and left the premises before completing his rostered turn of duty.

In a follow up letter, the Complainant was put on notice that a repeated failure to “work to finish” would result in the application of a formal disciplinary procedure. He was also advised that his next rostered turn requiring “work to finish” would arise on Monday October 28th, 2019 and that on and from that date he would be required to complete his rostered turn or face the prospect of disciplinary action.

On October 31st, 2019, in response to another occasion when the Complainant failed to complete his rostered turn of duty, he was written to, again, wherein it was highlighted to him that if he failed to work in accordance with the roster, he faced the prospect of disciplinary action

Notwithstanding this letter, the Complainant left work at 17.00hrs on 31st October, again failing to ‘work to finish’ as per his roster and also failed to do so on November 11th, 2019,

As a direct result of his failure to work in accordance with his roster, the Operations Director initiated a formal disciplinary procedure and a hearing took place on November 19th, 2019. At this hearing, the Operations Director repeated to the Complainant that leaving work before finishing his rostered turn, as he had done on each day the previous week, was not acceptable. He further advised that in the event of another failure to ‘work to finish’ as rostered in the forthcoming week, November 25th to 29th, further disciplinary action would apply and could result in suspension or possibly dismissal. On November 20th, 2019, the Operations Director issued the outcome of the disciplinary hearing, namely a Final Written Warning.

On November 25th, 2019, the first day of his next ‘work to finish’ roster, the Complainant again left work before his finish time and the Operations Director once again wrote to him and invited him to another disciplinary hearing which took place on December 10th, 2019 where the Complainant was accompanied by his union representative.

Following this hearing, on December 13th, 2019, the Operations Director issued the Complainant with a Final Warning” to remain on file for six months and explained that a further breach of discipline would give rise to the “…prospect of receiving a sanction of ‘Dismissal’. He was advised that he could appeal this decision to the Managing Director.

In parallel with his disciplinary decision, the Operations Director wrote to the union representative, advising that he would consider “refining the ‘work to finish’ taking account of operational requirements and customer service.

The Complainant appealed the disciplinary decision on December 17th, 2019 and his appeal was rejected following a hearing with the Managing Director, on January 17th, 2020.

On January 24th, 2020, a Staff Notice was posted, and clarified ‘work to finish’. This clarification took account of the usual finish pattern established over time.

In effect it stated that ‘Work to Finish’ meant that “unless otherwise permittedall must clear work requirements before leaving with an obligation to stay up until 19.00hrs if work is not completed before then…..If by exception, there is work to be completed after 19.00 hrs those on the shift will be asked to remain until it is completed.”

Despite the clarification issued by staff notice, on February 3rd, 2020 the Complainant again left his ‘work to finish’ roster early.

On February 11th, 2020, another formal disciplinary process was initiated, and the hearing which was chaired by the Finance Director took place on 17th February 2020. Her outcome which was issued on February 21st, 2021, resulted in the Complainant being dismissed from his employment

He subsequently submitted an appeal in respect of the decision to terminate his employment and this was heard by the Sales Director on March 10th, 2020.

The basis for the Complainant’s appeal was stated to be that the disciplinary sanction of dismissal was disproportionate to the breach involved.

He stated that;

-          Management were at fault by not insisting that hauliers arrive earlier.

-          He claimed that he had said that the warehouse was under staffed

-          He claimed that he understood that the roster involved was temporary

-          He referred to occasions when he had remained at work after 5pm

Neither he nor his representative, offered a basis for claiming that the disciplinary sanction was disproportionate other than that he was “being sacked for leaving 2 minutes early”

His representative did allege that the company was not entitled to alter working hours.

On March 15th, 2020, the Sales Director issued the outcome of the appeal stating that; “Unfortunately, the disciplinary issues that lead to your Appeal Hearing and the lack of a reasonable basis to support your actions in defying a number of alerts and formal warnings regarding the requirement to work as rostered, compel me to uphold the decision to terminate your employment.

In this regard I must advise you that your employment will be formally terminated with immediate effect on the date of this letter.”

The Law

The Act at Section 1, in relevant part, defines dismissal as follows:

“dismissal”, in relation to an employee, means—

• (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 of the Act, in relevant part, makes provision 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.

Section 7 of the Act, in relevant part, makes provision as follows:

(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….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

Findings

I note firstly the Respondent’s assertion that there was an entitlement to change the Complainant’s working hours because of a provision in his contract of employment which stipulated that: “the employee accepts that should business requirements necessitate attendance and work performance outside of standard attendance, such requirements will be fulfilled”

I find however that any reasonable interpretation of this contractual provision would understand from reading it that the Respondent could require an employee to work overtime on occasion if necessary.  I also do not believe that it can be used as a justification to permanently change the Complainant’s stipulated working time from his contracted hours of 07 00 to 17 00hrs to a new arrangement where he was required to work alternate weekly rostered hours: one with a finish time of 16.00 and the other with a ‘work to finish’ time, which could extend beyond 19 00hrs where the work was not complete.

I further note the provision in the Complainant’s contract of employment which states that “The terms of contract herein may only change by mutual agreement between the parties or by operation/application of the laws of the Republic of Ireland/European Union” and find that the permanent and unilateral change of the working hours outlined above is at odds with this.

I also note that it emerged during the hearing, contrary to the Respondent’s initial assertions, that special arrangements were made to facilitate the personal circumstances of two members of the teams who were on the roster but did not have to work the same hours as the other members. I consider it unreasonable that no such arrangements were made for the Complainant or that no discussions were had with him to see if some accommodation could be reached without imposing disciplinary sanctions and ultimately dismissing him.

While the Respondent also stated that all of the other employees who worked in tandem with the Complainant had agreed to the permanent change in working hours, I note that there was no collective agreement with a recognised trade union and that the Complainant cannot therefore consider having been bound by what other employees agreed.

Bearing all of the above in mind, I find that the Respondent acted unreasonably, and that the Complainant was therefore unfairly dismissed.

In making my decision on the appropriate form of redress, I note that the Complainant had an excellent working relationship with the Respondent and was initially engaged as an agency worker from 1st July 2016 before being employed directly from 26th April 2018.

I also note that he had an unblemished employment record prior to the disciplinary action being taken over the refusal to change his working hours and believe therefore that he should be allowed to resume employment on his contracted hours. While the Respondent asserted, when questioned at the WRC hearing, that the Complainant should only re-employed on the changed hours, I note that that special arrangements were made to facilitate the personal circumstances of two other employees on the roster who did not wish to work the changed hours and believe that such arrangements should also be made for the Complainant.

While the Complainant’s preferred redress is re-instatement, I note that he has not worked since his dismissal. I also note the inadequate attempts he has made to mitigate his loss notwithstanding the impact of the Covid pandemic. While he attributed his paucity of job applications to his inability to access the internet due to the closure of the public facility which he used and his preference to hand deliver his curriculum vitae to companies because of unsubstantiated concerns about his age, I also note that he failed to post job applications to any companies and when asked during the hearing why he did not do so stated that he “did not think of it”. 

I must also take into account that it took him five months to submit the unfair dismissal claim to the WRC and do not therefore consider that re-instatement without any loss of pay from the date of termination is appropriate in this instance.

Accordingly, I find that the Complainant should be re-engaged by the Respondent on his contracted hours, namely from 07 00hrs to 17 00hrs, from the date of this decision.