Complainant

Respondent

Parties

Cecile Eugene  Ramos

Bidvest Noonan Limited (Main Office) Cleaning And Other Services

Representatives

Aoife McDonnell Ibec

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-00041141-001

19/11/2020

The Complainant commenced employment as a cleaner with the Respondent in December 2001.  His employment ended on 21 May 2020.  He worked 40 hours per week and was €499 gross per week. An in-person hearing of the case took place on 28 June 2022.

The Respondent provided a detailed written submission.

The Respondent is a contract services provider.  The Complainant commenced employment with another entity on 16 December 2001 and transferred to the Respondent on 4 May 2010 under the Transfer of Undertakings Regulations.

The Respondent submits that the Complainant completed regular and comprehensive training on the Respondent’s policies including one in May 2017, pointing out that employees were paid for their breaks as they remained on call during their breaks and that they should remain onsite during breaks and use the canteen or smoking area closest to their workplace during breaks.

The Respondent submits that the Complainant attended further training in January 2019 which explained that personal mobile phones should be switched off and placed in lockers during working hours and should only be used during breaks.

In October 2019, following an investigation and a disciplinary hearing, the Complainant was issued with verbal warning, relating to his admission of failures relating to the misuse of a piece of equipment which left marks on the floor.  The verbal wakening was to remain on file for six months. The Complainant did not appeal this decision.

In February 2020, following an investigation and a disciplinary hearing, the Complainant was issued with a written warning, relating to absenteeism, lateness for work and poor performance. This warning was to remain on file for 12 months.  The Complainant did not appeal this decision.

 In May 2021, following an investigation and a disciplinary hearing, the Complainant was dismissed by the Respondent.  The dismissal resulted from the Respondent’s findings that the Complainant had, on the night of 23 April 2020, been guilty of (i) sleeping in a janitor room, (ii) not adhering to break time policy and (iii) not adhering to use of personal phone during work hours and taking into account that the Complainant was on a written warning regarding his conduct.

The Complainant appealed the decision to terminate his employment and an appeal hearing took place in late July 2020.  The appeal upheld the decision to dismiss the Complainant.

The Respondent submits that the Complainant was dismissed after a series of disciplinary procedures, each of which was carried out fairly. The Complainant did not appeal the first or second disciplinary sanctions. The Respondent maintains that all the sanctions were proportionate and fair, and notwithstanding that position the Respondent notes that it is not appropriate to review the fairness of these sanctions when the Complainant had not exhausted the internal remedy.

At all stages it was made clear to the Complainant that further misconduct by him, while the warnings were still active, would likely result in further disciplinary action.

The client mandates strict procedures and rules that apply to all attendees on site. Due to the importance of these rules the Respondent goes to great lengths to ensure that all employees are aware of these rules. It is known amongst employees that breaches will be taken seriously, in these circumstances the Respondent acted reasonably.

The Respondent submits that the sanction of dismissal was justified in the circumstances, where the Complainant’s behaviour amounted to misconduct and there were no mitigating circumstances.  It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same decision.

The Respondent maintains that, in line with fair procedures and the company’s policy, the Code of Practice on Grievance and Disciplinary Procedures and the universal principles of Natural Justice, the Complainant was informed of the allegation against him and was made aware of the consequences of his behaviour.  At all times he was afforded the right to representation, was given the opportunity to state his case, and there was a separate investigation, disciplinary and appeal process carried out.

The Respondent’s Site Supervisor gave oral evidence at the hearing. In her evidence the Site Supervisor stated that se had carried out the investigation into the events which led to the dismissal of the Complaint.  She stated that the Complainant admitted that he had done as alleged and she decided the matter should progress to a disciplinary hearing.

In response to questions, the Site Supervisor stated that she had not told the Complainant he could speak with the Supervisor but she had written to the Complainant in advance of her meeting with him and she had made him aware of his right to be represented.

The then Assistant Manager of the site at the time gave oral evidence at the hearing. He stated that he had read the minutes of the investigation meeting and had read the outcome of the investigation. He went through the outcome with the Complainant to confirm what had been covered.  He gave the Complainant a full opportunity to reply and the Complainant had said what he wanted to say; the Complainant agreed with the minutes of the investigation meeting. The Assistant Manager stated that the Complainant had been sent a written invitation to the disciplinary hearing well in advance of the hearing and it outlined that he had a right to reply to reply to the allegations.  On the day of hearing the Complainant was remined of his right to representation.

After the Disciplinary Hearing the Assistant Manager discussed the matter with the Site Manager and the management team. A letter with the outcome of the hearing was sent to the Complainant.

In response to questions, the Assistant Manager stated that he had discussed the matter with the Site Manager and a Director of the Respondent company.  The discussion centred on all the opportunities that had been given to the Complainant over the last 15 years and what they were going to do now. The Assistant Manager stated that it was the Site Manager who decided to dismiss the Complainant.  When asked what his role was in the decision to dismiss the Assistant Manager replied that he had given his opinion on the matter to the Site Manager. When asked whether the Site Manager had been at the Disciplinary Hearing the Assistant Manager stated that he had not been.

The witness also denied he had told the Complainant at the Disciplinary Hearing that he was going to recommend that he be dismissed. The Assistant Manager also stated that “we thought about other things”, when asked if any sanction other than dismissal had been considered.

The Respondent company’s Director of HR gave oral evidence at the hearing. In relation to the decision to dismiss he stated that the company would normally ask the Manager deciding on the matter to discuss the process with others to perhaps get a different perspective on the situation or if the Manager was in any way uncertain then guidance can be sought and  depending on the circumstances, the Manager could get reassurance that his decision was not unreasonable.  The HR Director stated that advice was not given to make the decision and that it was not a “group” decision. He also stated that it would not be normal to look back over someone’s time in the organisation when making a decision such as this.

The Respondent company’s Director of Strategic Development, who had heard the Complainant’s appeal of his dismissal, also gave oral evidence at the hearing. He stated that when he was asked to hear the appeal he had written to the Complainant and had had remined him, among other things, of his right to representation.  He had an open mind regarding the appeal. At the Appeal Hearing the Complainant had accepted he had done as alleged.  The Complainant’s concerns about the pandemic were discussed. The Director assessed that the disciplinary process had been followed. The appeal was unsuccessful.

The Respondent believes the dismissal of the Complainant to be procedurally fair and proportionate in all respects.  The Respondent contends that the actions of the Complainant contributed wholly to his dismissal.

In conclusion, the Respondent submits that the claim is without merit and therefore must fail.

The Complainant gave oral evidence at the hearing through an interpreter.

The Complainant stated that he had always good relations with management, that he always did what he was meant to do and never refused to do additional tasks if asked.  He had never been involved in any theft, or illegal activities.  He was not disrespectful to his colleagues and he was not lazy in doing his work.

Regarding the incident of 23 April 2020, which lead to his dismissal, the Complainant stated that nearing the end of his shift he was taking a break and because of his fear of contracting Covid 19 instead of going to the canteen to take his break, he went instead to the janitor’s room. As there were no chairs in the room he decided to lie down, but he had not been sleeping.  He denied he had tried to jam the door and that he was using his phone to check on the Covid situation.  When his supervisor entered the room, he told them he had not been sleeping and that it was his break time. Subsequently the supervisor told him that the incident would be reported.

The Complainant stated that he had a meeting with his supervisor at 06.30 that morning and a report was prepared.

The Complainant stated that he attended a Disciplinary Hearing on 8 May 2020.  The Assistant Manager carried out the Hearing. The Complainant stated that the Assistant Manager said at the Hearing that he would recommend that the Complainant be terminated.

The Complainant appealed the matter but his appeal was unsuccessful.

Complainant says he was told by the Assistant Manager at the Disciplinary Hearing that he was going to recommend that he be dismissed.  The Assistant Manager denied he had said this to the Complainant.

The Complainant stated that he had gained employment some three months after his dismissal but the hourly rate is somewhat lower than the rate he had enjoyed when working for the Respondent.

I have considered this matter carefully.

S6(4)(a) of the Act states 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 the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

Substantive Matter

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. 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 - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

So, does this dismissal fall within the range of reasonableness? I find it does.  The Complainant was on a warning and had been cautioned about his future behaviour and the implications if he were to breach the laid down rules and regulations regarding the required standards of behaviour.  The Complainant admitted that he had been in the Janitor’s room, that he had been using his phone and that he had not adhered to break time policy on the night of 23 April 2020.  Although he put forward explanations for these breaches of the rules the Respondent viewed them as such as to warrant a dismissal.  I cannot say that this was unreasonable.

Procedures

In the Respondent’s submission great play was made of the steps taken to fulfil the procedural requirements of a fair dismissal; an investigation, a hearing, a right to an appeal, a right to representation etc, and I have no doubt that the essential procedural steps were followed.

However, in oral evidence given at the hearing some of the evidence indicated that the decision-making processes within the procedures were not carried out the way they should have been. Specifically, I note two points made by the Assistant Manager in his evidence. Firstly, he stated that the decision to dismiss was made following a discussion among a number of people and that the it was the Site Manager (who was not present at the Disciplinary Hearing) who made the decision to dismiss the Complainant.  Secondly, the Assistant Manager stated that the Complainant’s performance over the last 15 years of his employment was taken into account in coming to the decision to dismiss.

These two revelations indicate that the inner workings of the disciplinary procedures were less than the minimum required by Natural Justice. Firstly, the decision to dismiss should be taken by an individual who has had full sight of the facts relating to the matter and understands the issues in play completely.  This person must, at a very minimum, have been present at the Disciplinary Hearing.  Secondly, when deciding on the sanction to be applied it is only the allegations in hand, to which the employee has been given opportunity to respond, that should be taken into account. Reaching back in time and including matters which were or should have been dealt with in the past in the decision-making process is grossly unfair to the employee.

In light of the above I find the fairness of the procedures adopted by the Respondent to have fallen below the standard required and therefore this was not a fair dismissal.

Redress

The preferred redress of both parties was compensation and I am of the view that some compensation is warranted.  Notwithstanding the fact that I have found the dismissal to be unfair there is no doubt in my mind that the Complainant contributed significantly to his own dismissal and I take this into account in calculating a compensatory award. The Complainant was paid €500 per week, he was out of work for three months following his dismissal and his new rate of play is slightly less than that which he enjoyed with the Respondent.  Taking all of this into account I believe an award of €4,000 is just and equitable in the circumstances

The Complainant was unfairly dismissed and I order the Respondent to pay him a sum of €4,000 in compensation.

Reasonableness, procedures, sanction,