Complainant

Respondent

Anonymised Parties

{An Operations Manager}

{An Inspection Company}

Representatives

Shonagh Byrne SIPTU

David Boughton BL  Clark Hill 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-00027874-001

18/04/2019

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

CA-00027874-002

18/04/2019

The Complainant was employed by the Respondent as operations manager from 2002 to 2019.

The Complainant claims he was unfairly dismissed by the company on 29th March 2019, procedures applied were unfair and not in line with the principles of natural justice. The sanction of dismissal was severe and not proportionate, his long service and employment record was not given proper consideration. He was not given his statutory notice entitlements.

The Complainant worked initially as a cargo surveyor with the company. In 2006 he was appointed as Operations Manager. In 2009 due to loss of a contract, the Complainant agreed to stay with the company and accepted a pay cut and fixed pay without overtime. He was assured that this would be rectified as soon as the contract was restored.

In addition to office duties, the Complainant says he was often working on the jetty when required, he worked twenty four hours seven days a week on any duty required including reporting, crewing, and jetty. He had every third weekend off, but was contactable by mobile if required.

The contract was restored on 1st April 2018, but staff did not transfer across. From 26th July 2018 he provided constant crewing for the new contract.  The Complainant began to record his overtime again in 2018. A new employee was hired to cover operations but needed to be trained. He covered the next few months until new staff were hired for jetty work. The Complainant raised concerns regarding his hours of work, role responsibilities, overtime and health and safety but these were not resolved. He was informed an external person would be appointed to investigate his grievance, but it did not happen.

In September 2018, the Complainant was issued with a second written warning by the company. The disciplinary process was found to be unfair on appeal, this was reduced to a six month verbal warning. The Complainant says the disciplinary process has been used against him unfairly in response to raising workplace grievances, and complaints to the Workplace Relations Commission.

On 21st January 2019 the Complainant was called to a meeting, and suspended on pay pending an investigation. He was not allowed bring a colleague to the meeting. The Complainant requested the reason for the suspension in writing. He was instructed to return his work mobile phone. The Complainant asked for enough time to remove personal data from the mobile and this was allowed. An investigation subsequently took place into a discrepancy between the Complainant’s phone bill and reported sick leave in December 2018, obstruction of the process by removal of data from the Complainant’s mobile phone despite instruction not to do so, and breakdown in trust in relation to his working relationship with the company. The Complainant had not received any updated contract of employment which restricted him from removing items from the company’s premises without advance authorisation. He had sought an up to date contract in a complaint to the Workplace Relations Commission.

An external investigator was appointed to conduct the investigation. The Complainant objected to different versions of the Terms of reference of the investigation furnished. The allegations were upheld.

The Complainant appealed the outcome of the investigation and asked for an independent external person to be appointed in accordance with the employee handbook. He complained he was being victimised due to complaints to the Workplace Relations Commission, and his suspension is a disproportionate reaction to him calling in sick one morning following sixteen years work. He sought urgent holidays in January due to his father’s serious illness, which request was declined. His suspension was deliberately delayed, and terms of reference expanded to include deletion of company information from his laptop. He has always been allowed work from home and take company data, laptop from the office. The company ignored his requests to check the accuracy of roaming location. His actions were not deliberate as he was trying to protect his private material on the phone. The company did not lose any data, as all documents and emails are stored on servers and the cloud.

The appeal of the investigation report was refused. The Complainant was invited to a disciplinary hearing conducted by the General Manager who had suspended the Complainant. The General Manager dismissed the Complainant for gross misconduct due to his absence when holidays had been refused, his seniority in the company, and found he had deliberately breached instructions.  The Complainant’s verbal warning was active for six months. He was dismissed without notice on 29th March 2019.

An appeal took place on 28th May 2019. The Complainant did not agree to a fresh hearing on appeal due to the breaches of fair procedures including, his suspension on the basis of roaming data on a mobile phone bill, involvement of the General Manager in the investigation and disciplinary hearing, and a severe and disproportionate sanction by the company, given the Complainant’s long service. The sanction of dismissal was upheld.

The Complainant submits he was unfairly dismissed, procedures applied were unfair and not in compliance with the principles of natural justice. The allegations against the Complainant changed, and allegations not upheld formed part of the disciplinary process. The Complainant was suspended the day prior to an inspection of the company by the Workplace Relations Commission.

The conduct of the company was not proportionate and not within the band of reasonable responses to dismiss the Complainant. The company did not consider any lesser sanction to dismissal. The Complainant relies on the decisions in C Brebner v Clann Mor Residential and Respite Limited UD1613/2014, and Lennon v Bredin M160/1979 where the Tribunal stated regarding dismissal for misconduct:

“We have always held 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 sort of serious category…”

The Complainant also relies on the High Court decision of Frizelle v New Ross Credit Union [1997] IEHC 137, and Coughlan v DHL UDD1738 that the decision was disproportionate and unwarranted in the circumstances. The Complainant seeks his financial loss and reinstatement.

The company carries out inspections, stevedoring services, terminal supervision and is an independent surveyor.

The Complainant trained as a cargo surveyor with the company in 2002 and is an experienced cadet and sailor. He returned to the company in 2004 and was on call twenty-four hours seven days a week to attend vessels to sample, measure tanks, calculate quantities and write reports.

In 2006 the Complainant was offered the position of operations manager, which involved co-ordinating work of inspectors and rostering stevedoring crews, liasing with parties, preparing inspectors reports and filled in on crew when necessary. This is a twenty-four hour seven days a week role and weekend crewing is split with the general manager.

In April 2018 when the company received a new contract, the Complainant’s salary was increased, and an office position was filled to free up the Complainant following discussions. He was only required to roster the stevedoring crews one weekend out of four and only be called out of hours when circumstances required. His main tasks were to compile and expedite reports and liase with the parties, draw up discharge plans for vessels, oversee safety meetings, quality audits. The Complainant cannot take holidays when the general manager is away and vice versa.

An incident occurred where the Complainant made serious aspersions about another party. The third party demanded an apology. There were fraught interactions between the General Manager and the Complainant, which concluded with the Complainant furnishing an apology. The Complainant was dissatisfied and lodged a number of complaints to the Workplace Relations Commission. A grievance process and mediation was offered to the Complainant. The company pursued disciplinary action against the Complainant for insubordination, and a written warning was given on 1st October 2018. On appeal the sanction was reduced to a verbal warning, active for six months.

The Complainant requested parental leave and a week of 2019 leave over Christmas, but this could not be granted as the General Manager was already scheduled to be on leave. The Complainant made thirteen complaints to the Workplace Relations Commission which were substantially rejected by the Adjudication Officer on 7th March 2019.

The Complainant requested annual leave for Monday 24th December 2018 by email in September 2018, which was not granted as the General Manager was on scheduled annual leave.

On 24th December 2018, the General Manager received a text message from the Complainant’s wife saying he was sick and could not come into work. In mid-January 2019, the General Manager received a bill which suggested from text messages and data roaming that the Complainant was in Germany on 24th December 2018.

On 21st January 2021, the General Manager met the Complainant regarding the discrepancy and was dissatisfied with his response. The Complainant was suspended so that an investigation could be carried out. The Complainant refused to hand over his phone, despite being told not to remove company data from his phone, he restored the factory settings removing all data. The Complainant’s phone and laptop were inspected by a computer company. Eleven thousand emails had been deleted from the laptop and were recovered. The phone had been wiped with no chance of recovery.

A HR Consultant was appointed to investigate the issue and furnished a report on 8th March 2019. On 26th March 2019 a disciplinary meeting was held with the General Manager, the Complainant was notified the allegations were upheld and he was dismissed due to gross misconduct. He was given a right of appeal to a barrister appointed by the company.

The Complainant lodged his complaints to the Workplace Relations Commission on 18th April 2019.  Part of the appeal relating to the accusation of deletion of data from the laptop was upheld. The decision to dismiss was upheld.

The Respondent relies on Pacelli v Irish Distillers Limited [2004] 15 ELR 25 in relation to the appropriate test to be applied:

 “The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded”.

The Respondent also relies on the decision in O’ Leary v Eagle Star [2003] 14 ELR 223 that a right of appeal should exist to test the validity of the decision and this allows a certain independence.

The Complainant has not given any explanation for the apparent discrepancy regarding his location on 24 December 2018. Deletion of material was in direct contravention of the instruction from the employer. The Respondent submits the actions of the Complainant meet the threshold for gross misconduct. The Respondent was entitled to process personal data from the phone bill where it has a legitimate right to do so.

I have heard and considered the written and oral evidence of the parties and their witnesses.

The Complainant complains he was unfairly dismissed from a position of significant responsibility in the company on 26th March 2019. He was employed for over 15 years with the company since 1st April 2004 and was the Operations Manager.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that 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 to 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 statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides 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 as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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.

The Complainant received a contract of employment from the Respondent in 2004. One of its terms requires the Complainant who is a non-national to apply for annual leave by 31st March each year, priority to be given to parents of children under 12 years. The Complainant was the second in command to the General Manager, and covered for the General Manager. He was not allowed take holidays when the General Manager was absent. However, arrangements to allow the General Manager and the Complainant be out of the office at the same time, had been put in place previously.

The Complainant received a written warning on 1st October 2018 for a statement about another party which the Complainant retracted. The written warning was reduced to a verbal warning on appeal. The Complainant made a series of complaints to the Workplace Relations Commission regarding taking holidays, overwork and other issues in October 2018. The Complainant’s request for parental leave over Christmas 2018 was denied. Holiday leave for Christmas was also refused. The relationship between the parties was described as combative by the Adjudication Officer, and it was recommended the parties engage on the issues.

 On 24th December 2018, the General Manager was notified that the Complainant was sick and unable to attend work by text message.

Following receipt of a mobile phone bill in January 2019, the Complainant was requested to attend a meeting. The phone bill suggested the Complainant was abroad on 24th December 2018 from roaming data, and not sick as claimed. At the meeting, the Complainant was informed he was suspended and requested to return his mobile phone. The Complainant was allowed use the company mobile phone for personal use. He was then allowed remove personal photos from the phone, but told not to remove company data. The Complainant said he had difficulty doing this and returned the phone with all information wiped. The Complainant says all company information was backed up on the company systems. The Complainant was accused of a breach of trust.

 A witness from the mobile phone company gave evidence that the roaming data was provided by other carriers to the phone company. The Complainant did not provide a satisfactory explanation.

The Complainant was ultimately dismissed for gross misconduct on 26th March 2019 and his appeal was unsuccessful.

The onus lies on the employer to establish that there were substantial grounds justifying dismissal and it resulted wholly or mainly from Section 6 (4) of the Unfair Dismissals Acts 1977-2015 which includes conduct of the employee or that there were other substantial grounds justifying dismissal. The Adjudication Officer may have regard to the reasonableness of the employer’s conduct in the dismissal.

The appropriate test is set out in British Leyland v Swift [1981] IRLR 91 by Lord Denning MR at pg 93

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But it a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view”.

The Complainant was immediately suspended, although there were no clear grounds for this, nor evidence of concern about potential interference with the investigation as set out in Bank of Ireland v Reilly [2015] IEHC 241.

The Complainant had long service and was a very senior member of staff. There were certainly pre-existing difficulties between the parties and absences at short notice caused difficulties for the employer which is a small business. Due to the nature of the operation, it is not covered by the Organisation of Working Time Act 1997 which regulates hours and breaks for staff. This was a source of dispute. It is regrettable that an opportunity to resolve the complaints informally through an external mediator or third party had not been put in place. The General Manager for the company accepted in evidence that the Complainant was good at his job.

The Respondent dismissed the Complainant for gross misconduct due to the Complainant’s failure to provide a satisfactory explanation for the roaming data in light of his absence. All information was deleted from the Complainant’s phone by him some hours after he tried to delete some personal photos. This was found to be a breach of trust. However, there was no evidence of any adverse impact or loss to the company from these actions.

The actions of the Respondent were not within the band of reasonable responses to the conduct, nor were these proportionate to the conduct given the employee’s seniority and length of service. There was no evidence the Respondent considered any alternative sanction to dismissal. I find the Complainant was unfairly dismissed on substantive grounds.  

Given the fractious history of the relationship between the parties over some years, compensation is the appropriate redress in my view. The Complainant has contributed to his dismissal.

The Complainant has provided extensive evidence of mitigation but has been unable to find alternative employment. He has worked in a specialist industry. He has financial loss for the past two years of €126,000. In all the circumstances, it is just and equitable that the Complainant be awarded financial loss of €80,930.77 which takes into account his contribution to the dismissal. I direct payment of the award by the Respondent.

The Complainant has sought payment of 6 week’s notice which was unpaid. I find his complaint    well founded and I also direct payment of €7,269.23 by the Respondent to the Complainant.

CA-00027874-001

The Complainant was unfairly dismissed and I direct payment of €80,930.77 in respect of his financial loss.

CA-00027874-002

The complaint is well founded and I also direct payment of €7,269.23 by the Respondent to the Complainant in respect of notice owed.

Misconduct, suspension, band of reasonableness