ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00031175

Parties:

Complaint:

Date of Adjudication Hearing:  17/05/2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 13 of the Industrial Relations Acts 1969] following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

No objections were raised to the remote hearing.

Background

 The employee was employed from the 1st December 2019 until the 17th September 2020 as Electrical Engineer

He was paid €4583.33 gross per month working a 39-hour week.

 His complaint is in relation to disciplinary sanctions up to and including dismissal.

Summary of Employee case

 The Employee submitted that he was set home from work on the 14th September 2020 for what he was told was an investigation, this led to his termination on the 17th September 2020 the reason were 1. Failure to follow absence procedures.2 Failure to devote the whole of his attention and abilities to the business and its affairs during his normal working hours namely the frequency and content of his internet access on the 4th September and 7th September 2020 through the 11th September 2020.

The Managing Director was unhappy that the employee did not call him directly to let him know that he was late on Thursday 8th September 2020 and that I needed to leave 30 minutes early on the 10th September 2020. The MD was on annual leave that week, according to the employee handbook 4th issue received by him on the 18th May 2020; page 10 section 11.

The procedure for this is to contact and inform his manager (FB) in advance and he had no issue.  The employee stated that he had followed the employer’s policy.

On the 2 Issue; The employees internet use while in work was not excessive and never impacted on his work rate. On Friday 4th September, the employee stated he had a normal schedule of works to be completed by close of business that day. This included wire tag numbers for the liquid link and pendulum and to complete the field wiring of the pendulum. All additional work was completed on time on the 7th, 11th, of September 2020.

The employee stated that his schedule of work to be completed that week is set in the Monday meeting with the MD.

It was stated that during the week that week that schedule is adjusted with add additional work.

All the additional work was completed on time.  The nature of the software used requires a lot of calculations, these can take anywhere from 3 to 5 minutes each, while waiting for these tasks to be complete the employee may take phone /open a search window, as soon as the machine is ready, he is back on the task.

This will show as multiple windows opening during the day or windows open for long periods of time.

 At no point was he made aware that any discussions that he was having with the MD were on progressing to a disciplinary stage.

The employee stated that the investigation was not conducted fairly, he never met the investigator no witnesses or relevant persons were questioned to verify information that he provided, and no findings were shared or discussed.

The employee submitted that the disciplinary process was flawed.

 The appeal was handled by Graphite HRM on the 2nd October 2020. They found in favour of the employer on all accounts. They (Graphite Hr) stated that the investigation meeting counted towards a disciplinary process because the employee was allowed to answer the questions put to him at no time before the termination was it referred to as anything other than an investigation.  

The employee also stated that he worked late to get orders out for the company.   

Summary of Employer case

 The employer wrote to the employee on the 17th September 2020 and stated a per the rules of the company’s disciplinary rules and procedures they retain the discretion to take into account the length of service with the company and to vary the procedures accordingly.

The employer stated and taking into account the length of service, they have decided that the employment should be terminated as the employee did not comply with the company policy and procedures.     

Employer stated that failure to follow the absence procedure on Tuesday 8th September 2020 and Thursday 10th September 2020 the employee signed in late (10.30am) and having arrived at 11.10 and leaving before his finish time 16.00) on Thursday 10th September.

Failure to devote the whole of your time, attention and abilities to the business and its affairs during normal working hours.        

The employer provided the following dates Friday 4th September, Monday 7th to Friday 11th September 2020.

The employee was offered the opportunity of an appeal hearing which was heard by an external HR company.

The Decision to dismiss was upheld at the appeal.

Findings

 I find that having examined the evidence that the employee accepts that he was late on Tuesday 18th September however he required to leave early. As the MD was on annual leave the employee went to his direct line manager and requested permission.

I find that the employee used the employer’s workstation for internet, and he also had the same link with his partners laptop and his private phone. The employer accepted that the IT person could not confirm which unit (Desktop/Laptop or phone) was using the internet on a continuous basis.

I find that the employer has a right to expect an employee to devote his/her time to their work.

However, I find that the employer should have a clear policy about “linking passwords” with an employee’s other device.  The employee was made aware that it was an investigation meeting that he was going to however it turned out to be a disciplinary one. The statement from the employee that the person who heard the appeal stated the fact the employee was able to ask questions it was deemed a disciplinary meeting.

I believe that the employee should have been made aware what meeting he was attending in the first instance.

I also find that the employers could not confirm what unit i.e., desktop, phone of the partners laptop was continuously the internet.

I think it would be more appropriate that they fully investigated the issue and gathered the facts before proceeding to a disciplinary.

I find in the circumstances the dismissal was unfair.     

Recommendation

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Based on the above findings I recommend that the employer pay the employee   2 months pay in compensation.

Dated:   July 12th 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Key Words: