Complainant

Respondent

Parties

James  Rea

Irish Fluid Controls (Chemfeed) Ltd

Representatives

  Self-Represented

   Mr K Doyle, Company Manager

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-00049245-001

20/03/2022

The issue in contention concerns the alleged Unfair Dismissal of a Sales & Services Consultant employed by a Chemical / Environmental Services Company.

The employment began on the 27th January 2020 and ended on the 21st December 2021.

The rate of pay was €769.23 per week for a 40-hour week.

The Complainant submitted considerable documentary evidence and gave an extensive Oral Testimony. He was fully cross examined by the Respondents.

He was an electrician by trade but had been hired as a Sales and Services Consultant. The work involving a lot of hazardous chemicals and water sampling and was initially quite unfamiliar to him. He was given, at best minimal, induction training. Matters progressed satisfactorily for the early part of 2020 and there were no complaints from either Customers or Management. 

The employer lost a significant contract with a major Poultry Company in September. The Management sought to attribute blame to him over this. This was completely false. He had altered the principal Respondent Manager, Mr D, well in advance, of the growing dissatisfaction of the Poultry Customer with the services the Company was providing.

In April 2021 a Customer in NW Donegal altered the Employer as to the unsafe practice of the Complainant in carrying hazardous chemicals in his Company estate car. The Customer queried if the Complainant had the necessary Chemical Training /Transport of Hazardous Chemicals certificates for this practice. He did not and refused to transport chemicals until trained. He also raised other H&S issues with the Employer.

Relationships soured after this. In August 2021 Mr D raised issues with the Complainant regarding his performance. A meeting in a corridor took place. The Employer seemed focused on the Administrative/paperwork side of the job. He was not trained in IT Systems such as Word or Excel programmes. The Employer was also focused on the Complainant not taking a more “Sales/Contract Renewal” role in addition to his Technical work. A formal Performance Review took place, and a series of Targets were set. A colleague Nigel was assigned to further train /assist the Complainant. The Colleague found no faults with his work but Mr D, the Manager, had by this stage adopted a very belittling approach and constantly harassed the Complainant. The Complainant had by this stage repeatedly request more training on the “paperwork” side of the business, but this was either not facilitated or given lip service by minimal hour long e-mail courses.

An issue arose over a car breakdown and motor insurance transfer / retransfers in Donegal. The attitude of the Employer was completely over the top for a simple mistake, likewise a mistake in dates for Annual leave. The date in dispute was originally written in US Script, and he read it backwards – a very simple failing.

The various Performance Meetings were simply sham affairs – he was never advised properly in advance what the agenda was, and the minutes were reduced to a series of “Yes or No” questions that did not reflect the full extent of the conversations.

His job brief was constantly being changed and he was being asked to do technical/chemical work for which he was not qualified or properly trained. He was also asked to, in effect, become a Salesperson seeking Contract Renewals. It was not his fault if he could not answer detailed chemical questions that often arose as this was not his area of experience.

He contested Respondent allegations about missing key Legionnaires Disease dates by pointing out that many of the sites were listed as requiring Annual tests and not the quarterly Tests suggested by his employer. It was a case of Mr D constructing a case against him.

He was expected to undertake long car journeys from Carlow to client sites. The Management was always miserly about expenses, and he often had to work for “free” to complete his assigned jobs.

Drawing on his Oral testimony he concluded in a final summary by stating that he had been “overworked and under paid” throughout his time with the employer.

The Respondent submitted a written statement and gave extensive Oral testimony from Mr D. the Owner/MD supported by Ms J, the Administrator.  The Company is a Chemical/Water/Environmental Testing organisation engaged on many large Food Processing and Chemical sites plus other large Institutions. The Complainant began with the Company in January 2020. He was given detailed training for his role including classroom and multiple site visits. Training from the major international supplier, SUEZ, was also arranged. In March 2021 a review meeting was held with no request from the Complainant for additional training.

In April 2021 an issue arose over chemicals at a Donegal site but there were no major issues. A Registered Haulier was used to transport the chemicals from Carlow to Donegal. The Complainant was involved in their handling on the Donegal site, but full PPE and Training had been provided. Refresher chemical training was provided for all staff.

On the 9th September 2021 a performance Review Meeting was carried out with the Complainant in Mountrath, Co. Laois. He was believed to be underperforming and a PRP plan was put in place. A colleague, Mr B, was assigned to assist the Complainant and effectively “mentor” him. Mr B gave the Complainant an Excel based tool – a Contract Obligation Schedule to allow him to monitor his customer contacts and track their requirements for testing etc. Mr B accompanied the Complainant to Customer sites as part of his mentoring.

In October a major query arose over Annual leave dates and the Complainant was asked to a meeting with the MD, Mr D, to discuss same.  The Complainant was quite truculent with Mr D at this meeting. A further issue arose over transferring vehicle insurances following a car breakdown in Donegal. He effectively drove without insurance in a Company vehicle.

A Disciplinary meeting was arranged for the 8th November 2021. He was given a Verbal Warning to last for six months. The Complainant appealed the Verbal Warning. An Independent Outside HR consultant, Ms R, was engaged to conduct the Appeal Hearing. The Warning was upheld by the Consultant.

A further PIP was put in place in November 2021. All additional Training and Support was offered by Mr D.

On the 1st December 2021 a major customer e-mailed the Company to raise serious concerns regarding the level of service being provided by and the basic technical competency of the Complainant. This prompted the Respondent to carry out a full review of all the Complainant’s clients. Serious discrepancies were discovered many with major legal and environmental risks. It was viewed as Wilful Negligence by the Complainant.

A Disciplinary meeting was held on the 20th December 2021. The Complainant was accompanied by Mr B , as a supporting colleague. The Respondent came to the view that the employment had to end and the Complainant was dismissed for Gross Misconduct over the missing Tests. An Appeal was offered. This was never taken up.

The decision to dismiss was proportionate and had to be taken in view of the serious risks the Complainant was exposing the Company to. Full training had been provided and he had been extensively supported. He stated that he understood the company policies but had “Forgotten” to do the required tests for Legionella . In a Company, in their business, this was completely unacceptable, and all similar employers would have come to the same conclusion.

Mr D, supported by additional testimony from Ms J ,  gave an extensive Oral testimony on all the above points. Complete and very comprehensive paperwork, minutes of meetings and e mail correspondence was submitted in support. The meeting notifications were all in order.

Mr M represented the Company. He presented as a competent Management witness.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines.

3:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

(Underlining by Adjudication Officer)

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

3:3         Reasonableness and the Dismissal decision.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applied the test of “reasonableness” to

1.       the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.       whether the procedures adopted were fair and reasonable and

3.       the reasonableness of the conclusion arrived at by the Respondent.

However, all cases rest on their own evidence and factual matrix and I will now examine these.

3:4        Consideration of the Evidence presented and Discussion of same.

In the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness”.

Much rested on the Oral Testimony on both sides.

A number of issues appeared to the Adjudicator.

The first and most telling was that the Complainant was, despite his CV at interview, a technical person happy using his electrical tools on defined works. The job with the Respondent had a much broader remit involving a lot of Compliance record keeping which the Complainant was not happy doing. This was not out of any ill will but very challenging for him as he had only a limited IT experience base. He experienced a lot of difficulty, he openly admitted , with the Excel based Contract Obligation Schedule tool. He admitted that Paperwork was not his major strength.

He also had a basic lack of background chemical knowledge. He continually referred in his oral testimony to colleagues “having University Chemical degrees” which he did not have. It was interesting to note that, while only hearsay, his much more scientifically qualified colleague, Mr B, never faulted him on his work commitment but felt that he needed help on chemical matters.

The Complainant was also not, it appeared from the oral Testimony,  particularly gifted with good “Salesman” skills and found contract renewal negotiations challenging.

The minutes of the Disciplinary meetings and Performance meetings were written in an unusual style of Yes/or No answers. While it did abbreviate matters it was comprehensive . It was also clear from the oral answers of the Complainant that he understood his shortcomings and the importance of the Company policies. He was fully cross examined on this point by Mr M.

His replies on the Legionnaire testing program that he simply “forgot” left a lot to be desired. It was a critical issue for a Chemical Testing Company. In the minutes presented he was recorded as acknowledging the serious nature of this omission. He appeared to be out of his depth on chemical matters.

On the Complainants’ side the Car Insurance transfers and Mix Up of Holiday dates seemed a bit over the top, disproportionate, as regards the Respondent disciplinary response

To an outside observer, experienced in employment matters and listening carefully to the Oral testimony, it would be tempting to say that the Complainant had been a seriously mistaken recruitment decision, colloquially a “bad fit” by the Respondent and that the relationship was never going to end happily.

In this scenario an employer is faced either with doing nothing or with a Misconduct Dismissal. Many employers would opt for a quiet “handshake” exit for the employee.

The breakneck speed at which the Dismissal process took place gave rise to unease for the Adjudicator. The shortfall in the Legionnaire testing programme discovery and the subsequent dismissal took place over a period of little over two weeks. As the Complainant pointed out the testing schedules were open to interpretation and to an observer the Respondent was not without fault in allowing this serous situation to develop.

However, the Complainant was remiss in not seeking assistance from the Respondent seniors or from his colleague Mr B, with whom he appeared to have had a good relationship. Mr B was no longer with the Company and did not give direct evidence.

3:5        Adjudicator Summary

The final point of Mr Justice Flood, quoted above , is worth repeating

“5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

In considering the Proportionality of the Dismissal certain factors influenced the Adjudication conclusion. Oral Testimony was crucial.

Firstly, the Complainant was a mistaken recruitment decision – he was an “on tools” electrician put into a quite technical chemical role with significant IT and Paper Compliance requirements. It was obvious from both the Written materials and the Oral evidence that it was a relationship that was very unlikely to work out happily. This was a Respondent recruitment failing.

Secondly, on the Complainant’s side he appeared to allow issues that he was technically very challenged with to get out of control and exposed the Company to significant risk. He could not deny that he had been trained and coached by Mr B, his more technical colleague.

To any employer in this Environmental Sector this “forgetting tests” on such a serious matter as possible Legionnaires disease exposure, was a very serious issue that warranted a significant disciplinary response, certainly Written Warning or Final Written warning territory.

In his defence the Complainant always maintained that Mr D was virtually impossible to contact whenever he had any queries.

Thirdly the Dismissal process was conducted with a breakneck pace.

Fourthly the Complainant did not appear to have lodged any Appeal.

In overall conclusion the Adjudication finding has to be that a complete Dismissal, carried out at such accelerated speed, was a Disproportionate response. Most Employers would feel that, while of the utmost seriousness , it was outside the “Band of Reasonableness” particularly when there was ambiguity over appropriate testing schedules and the well known weaknesses of the Complainant on chemical matters. It was also ,technically, a first offence.

Accordingly, and having reviewed all the written materials and oral testimony from both sides and guided by Mr Justice Flood’s views, the conclusion has to be that an Unfair Dismissal on the legal grounds of proportionality took place.

However, it was a situation where the Complainant contributed very largely to his own demise. Redress has to reflect this fact.

Unfair Dismissal, Employee contribution to Dismissal.