FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : C & F TOOLING LTD (REPRESENTED BY GAFFNEY SOLICITORS) - AND - VILIUS ZILINSKAS (REPRESENTED BY MARY CATHERINE DURKAN BL INSTRUCTED BY MK SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00013826 CA-00018235 Background The Appellant was employed by the Respondent from 4thMay 2007 until his dismissal on 9thFebruary 2018. The Appellant, in his appeal, outlined that he wished to appeal the quantum of award made to him buy the Adjudication Officer only. The Court established at the outset that the Respondent contested the decision of Adjudication Officer that the dismissal of the Appellant was unfair. The Court explained to the parties that its hearing was a de-novo hearing of the complaint of the Appellant and in circumstances where the parties continued to dispute the fairness of the dismissal no capacity to confine the Court’s jurisdiction to matters of award quantum existed. Both parties confirmed their acceptance and understanding of this position. Summary position of the Respondent The Respondent submitted that the Appellant’s contract of employment and handbook required him to be flexible and to undertake such work as may be assigned to him from time to time. The handbook provided to the Appellant advised him that the use of mobile phones or any other device to record sound or video was not permitted on the premises. Several redundancies were implemented in 2017 as a result of a downturn in the business and the Appellant was facilitated with work in the Green Energy business. In December 2017 an equipment issue meant that tasks which had previously been carried out robotically would have to be carried out manually. The Appellant was assigned to that area while the equipment issue was being resolved. On 4thJanuary 2018 the Appellant requested a meeting with the HR Administrator and the Operations Manager. He raised issues with his work assignment and indicated that he had joined the employment to carry out assembly work and that he would not perform any other job which the Respondent might assign to him On 5thJanuary the Respondent wrote to the Appellant confirming the meeting of the 4thJanuary and citing the flexibility provisions of his contract of employment including the requirements as regards acceptance of work that might be assigned to him from time to time. Ms MOH, an operations manager, gave evidence to the Court that on 9thFebruary she asked the Appellant to show another worker how to carry out certain tasks. That request was met with an explosive negative response and the Appellant immediately escalated to a state of aggravated and aggressive confrontation. He stated that he was not a trainer. He similarly refused to allow the other worker watch him while he carries out the tasks. He had his phone in his hand at that time and was advised by MOH that phones were not allowed on the factory floor during working hours. MOH then asked the Appellant to move to other work in order that another worker could demonstrate the tasks at issue. He aggressively refused to move to that other work. At this point the Appellant had his phone in his hand and a red light was on When questioned on the matter he aggressively stepped forward and thrust the phone in the face of Ms MOH and confirmed that he was recording. She became uncomfortable with the closeness to her of the Appellant and became concerned for her safety. He continued to refuse to cease recording. She then stated that they should both go to the HR office and as she walked to that office he followed her at a very close and intimidating distance and collided with her when she stepped back to open a door. When she entered the payroll office Ms MB, the payroll manager / HR Administrator was present as was Ms SB, a payroll assistant. MOH asked the Appellant to give her a minute and Ms MB asked him to wait in reception. He returned a few minutes later and entered the payroll office uninvited with his mobile phone in his hand and stating that he wanted to record. MOH advised him that use of a mobile phone for recording was against company policy as stated in the Employee Handbook. He angrily refused to put away his phone and stood blocking the doorway with one hand on the doorframe and the other holding his phone. Ms MB explained the policy on the use of mobile phones to the Appellant who argued with her on the matter. He started to move towards Ms MB. MOH advised him that if he did not cease recording there would be no option but to suspend him. The Appellant asked whether he would be suspended for one week, two weeks or three weeks and refused to comply with the instruction to cease recording. At this point neither Ms MB or MS MOH could leave the office as the Appellant had moved closer to them and blocked their way. Ms MOH advised him that if he refused to comply she would have no option but to fire him. He responded by saying ‘ok when do I get my notice pay and my P45’. He accepted his termination and returned to the factory floor to collect his belongings and leave the premises. The court asked the witness to clarify how the matter had moved from a decision to suspend to a decision to dismiss in such a short time frame. Ms MOH stated that the situation was a threatening one and was stressful to her and her colleague and she was anxious to bring it to an end. She confirmed that no procedure was followed in reaching the decision to dismiss and no appeal procedure was advised to the Appellant although such a procedure was contained in the employee handbook which had previously been provided to the Appellant. Ms MB gave evidence that when MOH arrived I her office she could observe that she was shaking. She gave testimony consistent with the testimony of Ms MOH as regards the events which occurred in her office. The Respondent submitted that the Appellant had contributed to his own dismissal by refusing to follow the instructions of the manager and by his threatening and abusive behaviour towards her and in the office of Ms MB. The Respondent further submitted that the Appellant had had made inadequate attempts to mitigate his loss following his dismissal. Summary position of the Appellant The Appellant gave testimony that on 9thFebruary 2018 his supervisor told him to carry out a few different assembly tasks and, when finished, to work on new prototype doors that were never assembled before. He was preparing his workplace for assembly of the doors when Ms MOH approached him to ask if these were the doors for that day’s production. He replied to say that he did not know and she aggressively accused him of not knowing what he was doing. He advised her that they were new doors and she aggressively accused him of being slow. She asked him to train another employee on the assembly of the doors and he advised her that they were new doors and that he was waiting for his supervisor to return and confirm that the doors were being assembled correctly. Ms MOH then advised the Appellant that if he couldn’t train another employee he should move to another work area. He enquired as to who would train him in the new area and also enquired about access to necessary protective equipment. She ignored him and asked another employee to leave his angle grinder on the table and said that the Appellant would take over. The Appellant advised Ms MOH that he would need training on the tasks involved and protective equipment. He asked that another employee be allowed to be present when he made his health and safety request and Ms MOH refused. He then asked if he could record the conversation. At that point MOH advised him that he could not record her voice and with a raised voice told him that he would regret his actions and told him to follow her to HR. MOH refused his request to bring a witness with him. When he arrived at the HR office she told him to wait outside the door. When he was called in to the office by MOH she informed him that he was going to be suspended. He requested a witness to the conversation but that was refused. She also refused a request that he be allowed to record the conversation. He then asked for detail as regards the length of his suspension and Ms MOH advised him that in fact he was being sacked and that Ms MB would send him his P45. Ms MB was in the office but did not intervene in any way. He was subsequently informed by e-mail that his employment was terminate as a result of gross misconduct. The Appellant clarified to the Court that he had not behaved in an intimidatory or aggressive manner at any time during his interactions with Ms MOH. He submitted that his dismissal should be viewed against the background of the history of his employment. He had moved departments on a number of occasions without notice and was never told where he would be working from day to day. He had previously been told by the production account manager that his hours were not flexible enough. That suggestion was never explained to him. He submitted that when he went to work in a particular section he was not welcome there. The supervisor ignored him and instructed him to lift heavy objects. He never received training but was intimidated into signing forms to say that he had received such training by Ms LM who worked in Health and Safety. He submitted that no fair procedure was followed in reaching the decision to dismiss him and that such a failure rendered his dismissal unfair. The Law Section 1 of the Act defines ‘dismissal’ for the purposes of the Act as follows: (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, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose; Section 6(1) of the Act provides 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(2) of the Act in relevant part states as follows: (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— (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, (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal Discussion and conclusionThe Court has noted carefully the background to the dismissal of the Appellant. There is no submission from the Respondent that any procedure was conducted wherein the Appellant was afforded the opportunity to address any allegation against him which might lead to his dismissal or to respond to any case made against him. The decision to dismiss the Appellant was taken unilaterally by Ms MOH without notice and in the absence of any investigation of the matter or independent disciplinary procedure being employed. The Court takes into account the provisions ofS.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures)which emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of him or her and to know any case being made against him or her and to have a fair opportunity to respond to any such case. The extensive jurisprudence of this Court and the Employment Appeals Tribunal is to the effect that an employer contemplating disciplinary sanction against an employee is obliged to ensure the observance of fair procedure and natural justice before making a decision in relation to the matter. In the within matter, despite the existence of a detailed disciplinary procedure which had been made known to the Appellant during his employment, no procedure at all was followed. In addition, the Appellant was given no right to appeal his dismissal. The Court has concluded that the dismissal of the Appellant was, as a result of the fact that no fair procedure or any procedure at all was followed in the process of deciding to dismiss, unfair within the meaning of the Act. The fact that the decision to dismiss was taken by the party affected by the alleged misbehaviour, the fact that no investigation of the events giving rise to that decision took place at all and that the Appellant was provided with no opportunity to state his case or to defend himself rendered the dismissal procedurally unfair. The Court has been presented with directly contradictory sworn evidence as regards the events which occurred on 9thSeptember 2018 which culminated in the dismissal of the Appellant. Having reached a conclusion that the dismissal was unfair within the meaning of the Act the Court is required by section 7(2) of the Act, in giving consideration to the issue of redress, to take account of the contribution of the Appellant to his dismissal and to his efforts to mitigate any loss suffered by him as a result of his dismissal. The discharge of the statutory obligation to consider the degree to which the Appellant contributed to his own dismissal requires the Court to make findings of fact in relation to the conduct of the Appellant on 9thFebruary2018. This is so because that conduct was, according to the evidence of the decision maker, Ms MOH, the sole reason for the dismissal of the Appellant. The Appellant and two witnesses on behalf of the Respondent gave evidence. Nothing in the demeanour of any witness gave rise to any concern as regards credibility. However, the evidence presented on behalf of each party to this matter was directly contradictory in respect of the alleged occurrences on the 9thFebruary 2018. It is common case that the first engagement of the Appellant with Ms MOH on the 9thFebruary related to the assembly of product. Beyond that accepted reality the parties, in sworn testimony, proffered different evidence as regards (a) an alleged request to the Appellant to demonstrate a work process to another worker, (b) an alleged refusal on his part to train other staff because he was not a trainer and (c) an alleged refusal on his part to allow anybody to observe him while he was working. In addition, the witnesses contradicted each other as regards whether the product in question was a prototype or a product with which the appellant was familiar and which he had worked previously. Ms MOH was the person responsible for production at a time of high customer demand. No basis has been submitted to the Court or proffered in evidence as to why, in their first engagement on the day, she would press the Appellant to work on assembling product with which he was unfamiliar and which, according to both parties, could be damaged if handled incorrectly. The Court concludes that, on the balance of probability, the evidence of Ms MOH is more likely to be true than the evidence of the Appellant in this respect. The Appellant and Ms MOH also contradict each other in sworn evidence as regards the nature of an alleged swap initiated by her following their initial engagement, of the Appellant with another worker. Ms O’H gave evidence that she asked the Appellant to take up buffing work with which he was very familiar. The Appellant’s evidence was that Ms MOH required him to take up angle grinder work for which he was untrained. The Appellant also gave evidence that he had asked for personal protective equipment in order to carry out this work and such equipment was refused by Ms MOH. No reason or rationale has been proffered in evidence or in submission for the proposition that Ms MOH, an experienced manager, would assign the Appellant to carry out angle grinder work for which he was untrained or for the proposition that she refused to allow him access to relevant personal protective equipment in order to carry out that work. The Court therefore concludes that, on the balance of probability, the evidence of Ms MOH is more likely to be true than that of the Appellant in this respect. Ms MOH gave evidence as regards what she described as an intimidating experience in walking the distance to the HR office and of the behaviour of the Appellant in the HR office. Her account of events in the HR office was corroborated by another witness on behalf of the Respondent in whose office the alleged behaviours occurred. The Appellant gave an entirely different account in evidence of the walk to the HR office and events which occurred in that location. His evidence described a situation which could not in any reasonable respect be regarded as intimidatory or challenging. On the basis of the fact that the evidence of Ms MOH as regards events which occurred in the HR office is corroborated by another witness and of the fact that it is common case that the events resulted in an immediate dismissal of the Appellant, the Court concludes that the evidence of Ms MOH and Ms MB is, on the balance of probability, more likely to be true than that of the Appellant. The Court’s conclusion in this regard is fortified by the fact that no basis has been put forward by the Appellant which could explain why, on that day in the HR Office, Ms MOH moved almost instantly from a decision to suspend him to a decision to dismiss notwithstanding the Appellant was an employee of approximately 11 years of service with the Respondent. Having regard to the findings of fact made by the Court and outlined above, the Court concludes that the Appellant, through his conduct on 9thFebruary 2018, contributed substantially to his dismissal and that the level of award to be made to him should be reduced to reflect that contribution. The Court, noting that no investigation of the alleged events was ever carried out, assesses the contribution of the Appellant to his dismissal at 60% and decides that the level of award should be reduced by that amount. The Appellant has provided the Court with evidence and submission as regards his attempts to mitigate the losses he suffered as a result of his dismissal. The Court has also heard from the Respondent in relation to this matter. Section 7(2) of the Act requires the Court to take into account the efforts of the Appellant in this regard when considering redress. The Appellant’s employment was terminated on 9thFebruary 2018. He has provided the Court with details of correspondence demonstrating a level of activity by him in attempting to secure employment with effect from 14thApril 2018. He has asked the Court to infer that he was seeking employment prior to that date and, in that context, he stated in evidence that he had asked friends of his to establish whether opportunities might exist in their employments. He has also stated in evidence that he was working on his CV after the 9thApril and that he had, in co-operation with the department of social welfare, undertaken a job seeking course and a ‘safe pass’ course. The Appellant was unable to provide the Court with a submission or evidence of attempts by him to secure employment from late May to late June 2018. He stated in evidence that from late June onwards he had attended a number of job interviews. He secured employment with effect from October 2018 on a rate of pay which was at least as great as that which he had earned while in the employment of the Respondent. He did not provide the Court with details in this respect. The Respondent submitted that the Appellant had not demonstrated adequate commitment or effort to mitigate his losses after 9thFebruary and submitted that the Court must take this failure into account in assessing any award of compensation to him. The Respondent asked the court to consider the decision of the EAT in Burke v Superior Express Limited (UD1227 / 2014) when it relied on the earlier decision inSheehan v Continental Administration Co Ltd (UD 858/1999)where it was held as follows: - "a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss." The Court considers it appropriate to apply these principles to the within appeal, and having regard to the submissions of the parties and the evidence of the Appellant, the Court concludes that the Appellant has demonstrated efforts in the period to October 2018 to mitigate his losses but also concludes that he has failed to demonstrate that those efforts were consistent throughout the period or that they were made with the standard of commitment and diligence required. For this reason the Court believes that quantum of the award to be made to the Appellant in respect of his unfair dismissal should be discounted by 20% to reflect the inadequacy of his efforts to mitigate his losses. Having regard to all of the above the Court, having concluded that the Appellant was, for the reasons set out above, unfairly dismissed, decides that compensation is the appropriate form of redress. This is so principally because (a) the Appellant has sought compensation as redress, (b) the findings of fact made by the Court as regards the conduct of the Appellant leading to his dismissal are such as to mean that re-instatement or re-engagement would not be appropriate, and (c) the Appellant has been in other employment since October 2018. The Appellant secured other employment in October 2018. His financial loss arising from his dismissal therefore related to the loss he suffered between February and October 2018. Having regard to all of the circumstances, the Court considers that an award of €17,223 is just and equitable. However, the Court has also concluded that this award should be discounted by 80% having regard to the contribution made by the Appellant to his dismissal and his failure to make adequate efforts to mitigate his loss. The award to be made to the Appellant therefore is €3,444.60. Decision For all the reasons set out herein the Court is satisfied that the Complainant was unfairly dismissed. The Court orders the Respondent to pay the Complainant compensation in the amount of €3440.60. The Decision of the Adjudication Officer is varied accordingly. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
