FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: WOODIES DIY LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MS YVONNE DEVLIN DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S) ADJ-00034829, CA-00045928-003 This is an appeal under the Unfair Dismissals Act 1977-2015 Ms. Devlin, ‘the Complainant’, was employed by Woodies DIY Ltd., ‘the Respondent’ from 2011 to 2021. In February 2021, the E-store section of the Respondent’s Tallaght, Co. Dublin branch, where the Complainant worked, was re-located to Drogheda, Co. Louth. The Complainant was offered the option of transfer with her work or an alternative role in the Tallaght branch. Following the utilisation of the Respondent’s Grievance Procedure by the Complainant and a subsequent disciplinary process, the Complainant was dismissed on 30 July 2021. The Complainant lodged a complaint under the Act with the Workplace Relations Commission, ‘WRC’. An Adjudication Officer, ‘AO’, decided that the complaint was not well founded. The Complainant appealed to this Court. Summary of Employer arguments. In February 2021, the E-store was re-located to Drogheda. The Complainant was given the option of transferring, where she could continue to work a Monday to Friday pattern, or she could remain in Tallaght and work the standard hours, which entail being flexible and working evenings and weekends, as provided for in her contract of employment. The Complainant chose to remain in Tallaght. However, she refused to work the hours provided for in her Terms and Conditions. In March 2021, the Complainant invoked the Respondent’s Grievance Procedure highlighting concerns regarding the change in her work hours, short notice of role change and the lack of a redundancy offer. The outcome of the process in April 2021, did not uphold the complaints re notice and lack of redundancy offer. In relation to work hours, the outcome was that the Complainant could either avail of a 12 month transition period to facilitate her return to store working hours or she could undergo interview for a position in the Accounts Payable Office working Monday to Friday in her current building on an increased salary plus a bonus scheme. The Complainant declined both offers. She did not appeal the outcome. In June 2021, disciplinary procedures were initiated for an alleged failure by the Complainant to work an evening shift. In the course of these proceedings, the Complainant corresponded with Mr. David Nally, HR Manager, who reiterated the Respondent’s position and informed her that four admin. positions had since been advertised with her desired hours. He also advised that a further refusal by the Complainant to work the required hours would be overlooked and that she would be given another chance but that any further refusal to comply might lead to suspension pending a disciplinary investigation. The Complainant continued to refuse to work the required hours and disciplinary proceedings were taken on four occasions for insubordination and refusal to adhere to working rostered hours. An incremental sanction was imposed on each occasion, culminating in a Final Written Warning being issued on 2 July 2021 and 5 days’ suspension on 15 July 2021. The Complainant was dismissed on 30 July 2021. The Complainant’s contract states clearly that she is required to work five days in seven with start and finish times to be determined by her manager. It provides also that operational requirements could result in a need to work extended hours. A disciplinary hearing took place on 26 July 2021, chaired by Mr. Nally, following which the Complainant was notified of her dismissal on 30 July 2021. The Complainant’s actions were gross misconduct as she persistently refused to comply with management instructions. The test for the Court, as perLooney v. Looney UD 843/1984, among other cases, is whether a ‘reasonable employer’ would have taken the decision to dismiss. The Respondent’s decision to dismiss was reasonable in the circumstances. The Complainant destroyed the Respondent’s trust and confidence in her and rendered the continuation of the employment relationship impossible, seeKnox Hotel and Resort Ltd. UD 27/2004. The Complainant was afforded the benefit of fair procedure in compliance with S.I. 146/2000. The Complainant contributed wholly to her dismissal and is not entitled to any redress. Even if the Court was to take a view that there were flaws in procedure, the severity of the substantive issue outweighs any such flaws. The Complainant has not offered evidence that she has made the efforts required of her under the Act to mitigate her losses, a requirement that , as perSheehan v. Continental Administration Co ltd UD858/1999,requires her to devote a reasonable amount of time every weekday to seek work. The Respondent gave the Complainant every opportunity to comply with the terms of her contract but was left with no alternative to dismissal. Summary of Complainant arguments. The Complainant worked Monday to Friday, 8am to 5pm for seven of the ten years that she worked for the Respondent. She had a verbal agreement with management to do so. When the Covid pandemic hit, the E-store became very busy and the Complainant continued to work during lockdown. The Complainant and her colleagues were re-assured by a manager that their roles would be safe even if the store moved to Drogheda. Then, on 1 February they were told that the store would be moving on 5 February. The options given were to go to Drogheda, with no travel allowance and adding two hours to the working day, or to remain in the Tallaght store with hours changing to late nights and week-ends. The Complainant explained that she had commitments and could not change her hours. The only option for the Complainant was to remain in Tallaght. On 30 July 2021, the Complainant received an email telling her that she was dismissed. This was totally unfair. The Complainant had always been a loyal and hard working member of the team and worked through the pandemic to support the Respondent and her colleagues. Redundancy could have been an option. There should have been some minimum notice of the E-store moving. The Complainant applied for two jobs in November 2021. She was appointed to one of these in June 2022. She did not apply for other jobs as nothing came up in which she was interested. The Complainant did not feel that she had the skills and experience to apply for the Accounts Payable role. After the E-store moved, the Complainant was allocated to the Garden Centre. Her Team Leader was happy for her to work her previous hours. Witness evidence Mr. Gary Nolan Mr. Nolan is Store Manager in the Respondent’s Tallaght branch. The witness explained to the Court the importance of all customer facing colleagues working the flexible hours in order to spread the liability for evenings and week-ends. While some specialist roles were Monday to Friday, all customer facing colleagues were required to work the hours provided for in their contracts. The Complainant had no questions for the witness. In response to questions from the Court, the witness stated that he had heard some reference to the Complainant having said that she had a verbal agreement about her hours but that he was unaware of the details. The witness had no knowledge of the offer made to the Complainant regarding a role in Accounts Payable. The witness said that he had not previously come across a situation where a colleague working Monday to Friday was required to change to the standard working arrangements. Mr. David Nally Mr. Nally is the Head of HR for the Respondent. At the time in question, he was HR Manager. The witness explained that the pandemic had pushed the Respondent’s on-line strategy forward by about 5 years. Initially, the response had been to set up 5 E-store ‘hubs’ but there had been stock issues and it had been necessary to centralise, which had been done in Drogheda. The witness said that the Complainant had initially accepted an alternative role in the Tallaght store, where she was required, like all other customer facing colleagues, to work the flexible hours. The Complainant had stated that she had a verbal agreement but this could not be established as she said that the manager concerned was no longer in the business. The witness said that the Complainant had never given a reason as to why she could not work the flexible hours, it was more a case that simply she was not working them. The Respondent was satisfied that she had what was required to take up one of two Accounts Payable roles that had come to be available and they had paused the recruitment process to allow her the opportunity to apply without the roles being advertised. In effect, she had been ‘given the nod’. She had never given any reason as to why she chose not to avail of the chance offered. The witness said that, in an attempt to assist resolution, he had overlooked a second infraction by her and the HR Director had called her but she never even called back. After a number of disciplinary processes, the Complainant was told that she had three options, she could adjust her position and indicate a willingness to comply, she could start fresh with a transfer or she would face dismissal. Her response was that the first two options were not in play and that dismissal was a matter for the company. The witness said that the Complainant had been offered a role in the same location with an extra €4k per year and had turned it down. She had never outlined any domestic consideration that prevented her from working her required hours, she just came across as unwilling. She made no concessions. The witness had no evidence of a verbal agreement. The Complainant had no questions for the witness. In response to questions from the Court, the witness could not say how the Respondent would have dealt with a verbal agreement if its existence was established as he had never come across that situation. The witness outlined how other members of the Tallaght E-store team had been dealt with by the Respondent. The witness said that the Respondent never made anybody redundant. The applicable law. Unfair Dismissals Act 1. “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, 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. (4) 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 one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, Deliberation. In a case in the U.K., Lord Denning MR set out the test for a body such as this Court in cases of alleged unfair dismissal, as follows;
In this jurisdiction, inBunyan v United Dominions Trust[1982] ILRM 404, The EAT adopted and applied the following principle enunciated by the UK EAT:-
Therefore, it is not for the Court to determine in the instant case if the Complainant is guilty of gross misconduct, rather the Court must determine if the conclusion reached by the Respondent was the action of a reasonable employer or if the decision to dismiss falls outside a band of reasonableness. The facts are that the Complainant’s contract of employment provided for flexible hours of work, indeed the contract gave the Respondent the right, if necessary, to extend hours of work. Given the nature of the business, such contractual terms have to be regarded as standard. As a result, there can be nothing unreasonableper sein the Respondent requiring the Complainant to adhere to the terms of her contract. It might be argued that the fact that the Complainant had not been required to work the hours specified in her contract for seven years afforded her some right to expect accommodation on the part of the employer. Even if this is the case, the Respondent offered her the opportunity to work in her existing location at increased remuneration, with working hours of 8am to 5pm, Monday to Friday. The failure of the Complainant to take up the opportunity offered to her left the Respondent with diminishing options as to how she might be accommodated. It does not appear to the Court, in those circumstances, that the decision to afford the Complainant the opportunity to phase in the return to the flexible hours over a 12 month period could be regarded as anything other than a genuine attempt on the part of the Respondent to try to accommodate the Complainant. The Court accepts the obvious fact, as explained by the Respondent, that other difficulties could have resulted if the Respondent had agreed to facilitate the Complainant indefinitely in working the hours that suited her while she was in a customer facing role. Consequently, the Court finds that the Respondent acted reasonably in its attempts to handle the situation in a way that accommodated the Complainant, while meeting the Respondent’s business needs. That being so, it cannot be held to be unreasonable that the Respondent took the steps that they did to seek to ensure compliance by the Complainant. Right to the very end of the process, the Respondent offered alternative options to the Complainant that, if she had been willing to avail of them, could have avoided the dismissal. This is not suggestive of the actions of an unreasonable employer. On the contrary, it shows an employer that wished to avoid dismissing an employee. The Complainant, by her actions, narrowed down the options available to the Respondent and her continued unwillingness to reach any sort of compromise left the Respondent with a decision as to whether it could sustain a position in which an employee was refusing to comply with instructions. It is difficult to see how it could be argued that it was unreasonable for the Respondent to decide that the stand off situation could not be allowed to continue. Taking all of the above into account, the Court is in no doubt that the decision to dismiss meets the ‘reasonable employer’ test and falls within a ‘band of reasonableness’, as set out above. Accordingly, the dismissal cannot be regarded as unfair and the Complainant’s appeal cannot be upheld. Determination. The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
