Complainant

Respondent

Parties

Donal  Herlihy

Solvar Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Jadel Naidoo B.L. instructed by Eoghan O'Reilly FH O'Reilly & Co Solicitors

Adrian Twomey Jacob & Twomey Solicitors LLP

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-00048754-001

22/02/2022

The Complainant commenced employment with the Respondent on 9 June 2004 in the role of a Graphic Designer and Photographer.  The complainant was dismissed on 17 February 2022 following his refusal to carry out work which he deemed to be outside of his remit.  He submitted a claim under section 8 of the Unfair Dismissals Act 1977 five days after his dismissal on 22 February 2022.

The Complainant had previously filed complaints (CA-00045403/ADJ-00034482) under section 7 of the Terms of Employment (Information) Act 1994 and section 13 of the Industrial Relations Act 1969 on 28 July 2021 after he had received his first written warning.

The claim was submitted on the 22nd of February 2022 thus the cognizable 6-month period of the complaint’s date from 23rd of August 2021.

The Complainant commenced employment with the Respondent on 9 June 2004 in the role of a Graphic Designer and Photographer normally working 30 hours per week.

 The Respondent is a family-owned Irish jewellery company established in 1941 by the Obernik family. It is based in Dublin and designs and creates handmade Irish jewellery. Much of the jewellery in question is inspired by Celtic designs and patterns and/or the claddagh emblem. It has particular appeal to the tourist market and was significantly impacted by the decline in tourism occasioned by the COVID-19 pandemic.

Up to 2017, the Respondent was one of three companies owned by the ANG Group, which was in turn owned by the Obernik family. The other companies owned by the ANG Group were Fields Jewellers and Fraser Hart (a retail jewellers chain based in the UK). In 2017 the Group was restructured following a decision by the Obernik Brothers to each run their own businesses separately.

The Respondent company was disposed of by the ANG Group and acquired by Solvar Holdings Limited. These changes were made by means of a share transfer and, there was no transfer of an undertaking within the meaning of the Acquired Rights Directive and the associated Irish 2003 Regulations

 On 1 January 2019 Solvar Holdings Limited acquired another family-owned jewellery business, NJO Designs Limited. As a result, NJO Designs Limited and the Respondent became associated companies owned by the one parent, Solvar Holdings.

 The Complainant and other employees were reasonably required during 2021 to undertake some work in order to promote and sell new products that became part of the Solvar Group’s wider portfolio as a result of the acquisition of NJO Designs. They had previously undertaken similar work in relation to Fields Jewellers’ products prior to the 2017 restructuring.

The Complainant, however, repeatedly, and consistently refused to undertake work assigned to him in relation to NJO Designs jewellery. He insisted that he was employed by Solvar Limited and that he could only be required to undertake work relating to Celtic jewellery sold by the Respondent.

The Complainant’s obstinate and enduring refusal to undertake work that was being reasonably assigned to him was, as a matter of law, a fundamental breach and repudiation of his contract of employment.

 It led to:

• his being issued with a written warning on 3 June 2021

• a final written warning on 25 November 2021 and

• his eventual dismissal on 17 February 2022

The Complainant did not avail of the option of an internal appeal against his dismissal. Rather, he filed a complaint (CA-00048754/ADJ-00037429) with the WRC under section 8 of the Unfair Dismissals Act 1977 five days after his dismissal on 22 February 2022

The Complainant had previously filed complaints (CA-00045403/ADJ-00034482) under section 7 of the Terms of Employment (Information) Act 1994 and section 13 of the Industrial Relations Act 1969 on 28 July 2021 after he had received his first written warning.

 The Complainant commenced employment on 9 June 2004. The Complainant’s contract of employment specified that he was “employed as a Design Dept Operator/Graphic Designer” and was “required to perform such other duties outside the normal scope of [his] job title as may be reasonably required … from time to time.”

The Employee Handbook specifies (in the section relating to “Standards of Performance”) that: “Your job title does not limit your duties and in that regard, you are expected to be flexible in the execution of your duties and perform whatever duties may be required of you from time-to-time in the interest of the successful achievement of the Company’s overall objectives.

During the course of your employment, it may be necessary to expand your duties, within the general scope of your position or change your job function. The Company reserves the right to assign other duties to you at any time, it being understood that you will not be assigned duties that you cannot reasonably perform.”

The CEO of Solvar, Mr. Geoff O’Donoghue, had a meeting with the Complainant on 8 February 2021 At that meeting, Mr. O’Donoghue explained that certain retail work had dried up (due to a drop in tourist retail sales arising from the COVID-19 pandemic) and that the outlook for such sales was particularly uncertain for 2021. Mr. O’Donoghue explained that the focus going forward was going to be on providing retailers with digital resources to help drive on-line sales of both Solvar and NJO products.

The Complainant confirmed that he understood that the situation had changed, and he raised no objections to the company’s plans.  On 14 April 2021, however, the Complainant emailed Ms Fiona Spencer, Marketing Manager, and informed her that he was unwilling to “take on additional workload which is outside of my terms of employment which is with Solvar Ltd.”

His email made it clear that he was, at that stage, unwilling to undertake new work assigned to him unless he received additional remuneration. He was, of course, free to ask for a pay increase at any time. Likewise, he was entitled to undertake work assigned to him under protest pending the resolution of any grievance that he might have chosen to submit.

He did not, however, choose to take such a course of action. Rather, he simply refused to undertake work that was lawfully and reasonably assigned to him. In so doing, he was repudiating his contact of employment.

 On 29 April 2021, Mr. O’Donoghue emailed the Complainant directing him to undertake work that was assigned to him by his line manager and noted that refusal to carry out a “legitimate and reasonable request” might lead to disciplinary action being taken.   On 13 May 2021, the Complainant emailed Mr. O’Donoghue, effectively repeating his refusal to undertake work assigned to him. 

His email claimed that when a staff member at Fields left in 2006 or 2007 his duties were increased by the addition of design/photography work for Fields. He complained that this involved a change to his employment contract and that he was not notified in writing at the time. As it happens, the Complainant had performed work that was ultimately to the benefit of Fields Jewellers for years up to the group restructuring in 2017.

 Thereafter, the Complainant consistently refused to undertake work that was assigned to him where that work related to NJO products. On 26 May 2021, Mr. O’Donoghue wrote to the complainant inviting him to attend at a disciplinary hearing arising from his “failure to co-operate with and complete a reasonable request” from his line manager.  

The disciplinary hearing took place on 31 May 2021. At the disciplinary hearing, the Complainant maintained that he was entitled to refuse to undertake work that was related to NJO products.    A formal written warning was issued to the Complainant by Mr. O’Donoghue on 3 June 2021 by reason of Mr. Herlihy’s refusal to comply with a reasonable request from his line manager.

On 16 June 2021, the Complainant emailed, Orla O’ Dwyer, Finance Director, indicating that he wished to appeal the formal written warning.  The appeal hearing took place on 21 June 2021, Ms O’ Dwyer upheld the written warning.   She also asked him to undertake the NJO work for a trial period through to the end of October 2021 with a new job description being put in place. On 21 July 2021, the Marketing Manager, Fiona Spencer, met with the Complainant and furnished him with an updated job description at around that time.  He refused, however, to undertake the work being assigned to him even on a trial basis.    

Mr. O’Donoghue wrote to the Complainant on 23 July 2021 formally instructing him to undertake the work being assigned.   He noted that any refusal to do so could lead to further disciplinary action. The Complainant responded to Mr. O’Donoghue by email on 26 July.  He stated that any trial period would be “pointless” but said nothing to indicate that he would comply with Mr. O’Donoghue’s instruction. Mr. O’Donoghue replied by email on 27 July 2021 assigning work to the Complainant and formally instructing him to undertake it.  

 On 28 July 2021, the Complaint emailed Mr. O’Donoghue stating that he would carry out work for Solvar Limited but adding that “NJO are not covered under my contract of employment”.  He also asserted that “the company failed in their obligation to provide me with an updated Job description prior to … issuing me with a warning”.

Mr. O’Donoghue emailed the Complainant on that same date clearly stating that he was required to undertake the NJO work and that it was reasonable for the company to schedule work for him relating to any entity or brand within the corporate structure. On that same date (28 July 2021) the Complainant submitted his first complaint to the WRC. 

That complaint sought (under the Industrial Relations Acts) to have the written warning expunged from his record and (under the Terms of Employment (Information) Act 1994) sought redress for a supposed failure to notify him of a change to his terms and conditions of employment and for alleged penalisation for giving notice of an intention to exercise a right under the 1994 Act.

 It is submitted that the complaints under the 1994 Act were misconceived. Following the Complainant’s continued refusal to carry out the work assigned to him, Mr. O’Donoghue wrote to the Complainant again on 29 July 2021 directing him to attend at another disciplinary hearing for failing to comply with a reasonable instruction.

The Complainant subsequently went out sick and submitted a series of medical certificates that did not identify any particular illness or injury.   The second disciplinary hearing eventually took place on 15 November 2021.   The Complainant’s position remained largely unchanged. He insisted that as NJO was a limited company and he was employed by Solvar Limited, he was entitled to refuse to undertake work relating to NJO products. 

 Mr. O’Donoghue issued a final written warning to the Complainant on 25 November 2021. The Complainant replied by letter dated 30 November 2021 alleging that the company had breached the “Employment Act” and stating that he was “entitled” to refuse to carry out the work assigned to him.

The complainant did not appeal the final written warning, claiming that he would not get a fair and unbiased hearing.  Further communications were exchanged over the following months.  The Complainant continued to refuse to undertake any work relating to NJO products.

On 3 February 2022 the Respondent again found itself having to call the Complainant to a disciplinary hearing based on his ongoing failure to co-operate and to comply with instructions to undertake work assigned to him. The disciplinary hearing took place on 10 February 2022.  The Complainant continued to adopt the same position as before.   

On 17 February 2022, Mr. O’Donoghue wrote to the Complainant to inform him that he was being dismissed for repeatedly failing to co-operate with and complete a series of reasonable requests to complete NJO design work.  The Complainant was paid in lieu of notice but was offered the opportunity to appeal his dismissal to Marcus Obernik, Director. He did not do so.

Instead, he submitted a further complaint to the WRC on 22 February 2022 (this time under the Unfair Dismissals Acts).

 It is noted that the Complainant has exhibited a purported advertisement of his job with his submission and asserted that his job was advertised before he was dismissed. That assertion is entirely misleading. Rather, the purported job advertisement related to an additional graduate programme position. The Complainant himself was not replaced until more recently and his job was certainly not advertised prior to his dismissal. Rather, the position that he had held was advertised on LinkedIn on 30 March 2022 and on Indeed on 6 April 2022; well after he had been dismissed and elected not to appeal his dismissal

Legal Submissions

Refusal to Obey Lawful and Reasonable Instructions, Insubordination & Repudiation

It has long been the case throughout the common law world that the refusal of an employee to obey a lawful and reasonable instruction amounts to a repudiation of contract and warrants their dismissal (see Law Society Gazette article in booklet of authorities). Sometimes such conduct is described as “insubordination” and the law in most common law countries regards it as meriting summary dismissal.

In the leading Australian case of R v Darling Island Stevedoring & Lighterage Co Ltd, (1938) 60 CLR 601, 621-622, Dixon J expressed the common law standard or test as follows:

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”

In the British case of Pepper v Webb, (1969) 2 All E.R. 216, a gardener refused to obey his employer’s instructions in relation to certain plants and that refusal, coupled with insolent remarks made by the employee, was held to justify instant dismissal.

The decision in Pepper v Webb was approved of by Hamilton J. in the later unreported Irish case of Brewster v Burke, (1985). The Brewster decision itself has been relied upon: • by the WRC in the cases of Munteanu v JP Ryan Limited, ADJ-00030782, and An Employee v An Employer, ADJ-00015195 and • by the Employment Appeals Tribunal in the case of Cashman v St. Patrick’s Hospital Cork CES Limited, UD154/2013.

In each of these cases, employees brought claims for alleged unfair dismissal after they were dismissed for refusing to follow lawful and reasonable instructions. In each of the cases their claims failed. The Respondent notes that in the Cashman case the Employment Appeals Tribunal quoted the Brewster judgment, stating that:

 “It has long been part of our law that a person repudiates his contract of service if he wilfully disobeys the lawful and reasonable orders of his master. Such a refusal justifies an employer in dismissing an employee summarily.”

It is submitted that the instant case is one to which that principle applies and that the Respondent, in paying the Complainant in lieu of notice, did more than it was legally obliged to do in the circumstances.

Reasonable Employer

Section 6. (4)(b) of the Unfair Dismissals Act 1977 (as amended) provides that a dismissal is not an unfair dismissal if it results wholly or mainly from the conduct of the employee. In the recent case of O’Grady v Heraeus Metal Processing Limited, Case ADJ-00029216 (8 November 2021) the Adjudication Officer upheld a dismissal for misconduct having referred to a number of decisions in other cases, including that of Looney v Looney, UD83/1984, in which the Employment Appeals Tribunal referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

The Adjudication Officer then went on:

 “With regard to the question of what a reasonable employer would have done in the circumstances, as Lord Denning put it in British Leyland UK Ltd v Swift (1981) “if a reasonable employer might have dismissed him, then the dismissal was fair”.”

The Denning MR decision upon which the Adjudication Officer relied (British Leyland UK Ltd v Swift, [1981] I.R.L.R. 91), has been cited with approval in this jurisdiction on many occasions. Hence, in Allied Irish Banks v Purcell, [2012] E.L.R. 189, Judge Linnane stated: “Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v Swift [1981] I.R.L.R. 91 and the following statement of Lord Denning MR at p. 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 if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view.

 It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

The comments of both Denning MR and Linnane J were cited with approval by the WRC in the recent case of Employee v Employer, ADJ-00031368.  It is submitted that the instant dismissal was one within the above-mentioned band of reasonableness and, in those circumstances, it is not for the WRC to substitute any alternative view for that of the employer.

Procedural Issues

The Complainant’s submission makes much of alleged procedural deficiencies However, it is important to note that:

1. The Complainant did not appeal his dismissal internally. Rather, he filed his complaint with the WRC within five days. It is not open to him to contend that any appeal would have been procedurally unfair or deficient when he himself elected not to appeal.

2. The Complainant appears to be asserting that different persons must handle each stage in a disciplinary process. That assertion is without any legal validity. Whilst it is accepted that different individuals must handle, for example, a disciplinary hearing and an appeal hearing, the law has never required employers to have three different managers or persons dealing with warning, final written warning and dismissal stages in a disciplinary process.

3. At paragraph 12 of his submission, the Complainant asserts that the internal disciplinary procedure requires that each stage in the disciplinary process be conducted by different individuals. That is a misstatement of the content of the procedure which simply refers to employees being “invited” to hearings by particular individuals or their nominees.

The Claimant commenced employment with the Respondent on the 9th of June 2004 and was employed by it until his contract was terminated by the Respondent by letter dated the 17th of February 2022.  The dismissal of the Claimant by the Respondent in the circumstances of this claim amounts to an Unfair Dismissal.

Section I Unfair Dismissals Act 1977 as amended states, inter alia, as follows:

                "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,

Section 6(1) Unfair Dismissals Act 1977 as amended states 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. 

 It is the Claimant's case that there are no grounds contained in Section 6 or other substantial grounds which justify the dismissal in this case. The disciplinary process was instigated on the basis of the Claimant's alleged failure to co-operate with and complete a reasonable request for your Line Manager on Monday 24th May 2021 when requested to complete NJO Design work.

In the letter of termination, it is stated [M]y decision to terminate your employment is based on your repeated failure to co-operate with and complete a series of reasonable requests to complete NJO Design work.

It is submitted that, in circumstances where the Claimant's contract of employment was at all times with Solvar Limited, the foregoing reasons do not provide grounds for the disciplinary sanctions imposed. 

 The onus of justifying the dismissal in this case rests with the Respondent pursuant to Section 6(6) Unfair Dismissals Act 1977 as amended which states as follows:

6(6) In determining for the purposes of this Act whether the dismissal of an 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 specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6(7) Unfair Dismissals Act 1977 as amended states, inter alia, as follows:

 "(7) Without prejudice to the generality of subsection (l) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the [the adjudication officer or the Labour Court3], as the case may be, 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) Qf the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred [o in section 14 (l) of this Act or with [he 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.

It is submitted that in all the circumstances of the case the Respondent acted unreasonably in dismissing the Claimant and failed at any stage relating to same to conduct itself in a reasonable manner or to operate its disciplinary process in a fair and impartial manner and in particular in relation to the purported internal appeals procedures relating to the Final Warning issued by letter dated the 25th of November 2021 and the second concerning the Dismissal issued by letter dated the 17th of February 2022. 

The Respondent has failed to comply with its own internal Disciplinary Process and the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.    

The Respondent's internal Disciplinary procedure sets forth a two-stage procedure at pp. 90 to 91 of the Handbook. Pursuant to Stage l: Formal Warning the policy states [T]he employee may be invited to formal disciplinary hearing by their line Manager or nominee. 

The policy goes on to describe Stage 2 Final Written Warning states [T]his will usually only happen after the employee has been invited to a formal disciplinary hearing by the People and Culture Coordinator or nominee.  

 In the circumstances of this case, and where it is clearly envisaged by the internal procedure that Stages I and 2 would be conducted by different individuals, the same individual conducted both Stages I and 2 of the internal procedure.

As Amended by Section 80(l)(e) of the Workplace Relations Act 2015.   As substituted by Section 5 of the Unfair Dismissals (Amendment Act) 1993.   The Code of Practice on Grievance and Disciplinary Procedures states at 4.

GENERAL PRINCIPLES    

l. The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available.

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:          

•             That employee grievances are fairly examined and processed;

•             That details of any allegations or complaints are put to the employee concerned;

•             That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;  

•             That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;   

•             That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the   employee and any other relevant or appropriate evidence factors or circumstances.

In the circumstances of this claim the Respondent failed to make an internal appeal mechanism available to the Claimant that was impartial where in respect of the proposed appeals hearings, the first in respect of the Final Warning issued by letter dated the 25th November 2021 and the second concerning the Dismissal issued by letter dated the 1 7th February 2022, proposed to the Claimant in the context of both purported appeals a person about whom the Claimant had made his concerns known to the Respondent in writing.   It is submitted that the Respondent failed to provide a fair, reasonable and impartial process to the Claimant in respect of both of the above-mentioned proposed appeals.

It is clear that the Respondent in light of the foregoing and in the context of the Final Warning and Dismissal appeals also failed to adhere to or consider the reasonable alternative options which were set out in the Respondent's own disciplinary procedure which states at page 95 of the Handbook the following:

Appeals

There is a right of appeal at every stage of the formal disciplinary process.  Appeals of disciplinary sanctions will be heard by but not limited to a:

•             Manager senior to the one who heard the disciplinary hearing

•             Manager from another Department or Region

•             Member of the Senior Management Team

•             A Company Director

•             Suitability qualified Manager or HR professional external to the Company

•             Other suitably independent person        

The appeals Manager will not have been directly involved in the original disciplinary issue, investigation, hearing or action. 

In contravention of the foregoing internal procedure the individual proposed to hear the appeals of the Final Warning and the Dismissal decisions was not senior to the individual who conducted the disciplinary hearing. It has been determined as undesirable that an appeal should be heard by a person junior to the original decision maker.   

It has been held that an employer's appeal is 'compromised' when it does not involve a detached  independent body to hear the employee's appeal  and it is submitted that in this case the Respondent's appeal process is clearly 'compromised' on the facts of same and where no qualified Manager or HR professional external to the Company or other suitably independent person was proffered or considered by the Respondent and as a matter of fact the only candidate proposed by the Respondent to hear the appeals was a person who the Claimant had raised serious concerns and had notified these concerns to the Respondent.

Further, and in the circumstances of the concerns expressly raised by the Claimant and notified to the Respondent concerning Mr. Obernik, no consideration was given to a [S]suitability [sic.] qualified Manager or HR Professional external to the Company or [O]ther suitably independent person to hear the appeal.   In the circumstances of this claim the foregoing clearly represents an entirely unreasonable approach by the Respondent in the conduct of the internal appeals procedure and the disciplinary procedure as a whole. 

In a decision of the WRC in April 2017 in An Employee v An Employer the Adjudication Officer commented as follows:

'An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.

In Aurivo Co-Operative Society Ltd v Bowens 9, an appeal of a decision of Adjudication Officer it was affirmed that an impartial manager should have conducted the disciplinary hearing.

In this case the claimant was successful before the WRC in his claim that he had been unfairly dismissed and was awarded €12,500. The respondent appealed. It was the respondent's case that the claimant was dismissed for carrying out a 'card not present transaction' when he was on a final written warning (which he had not appealed) in relation to carrying out a transaction for himself.   The claimant argued that fair procedures were not afforded to him when the respondent reached the decision to dismiss him.   The Court noted that what was at issue was the alleged failure on the part of the claimant to follow an instruction.

However, the Court noted that in or around the same time, two other workers also breached the policy, 'which has to raise issues as to how clearly the policy was understood by the staff in general and the importance attached by management to this particular policy'. In this regard, the Court found that:

The Complainant was not given a written copy of the instruction or policy nor was the policy displayed in the workplace At no time were staff advised that a breach of this policy could lead to disciplinary action up to and including dismissal. 

 Moreover, the Court found that the same manager that had dealt with the written warning given to the claimant expressed the view that when the second incident was brought to his attention, he 'felt the trust was gone'. Notwithstanding this was how he felt that same manager went on to deal with the matter and dismissed the claimant following a disciplinary hearing. The Court held that in the circumstances, an 'impartial manager' ought to have conducted the disciplinary hearing.   The dismissal was therefore an unfair one and the claimant was awarded compensation. The decision of the Adjudication Officer was affirmed. 

The disciplinary procedures operated by the Respondent were not fair, reasonable, impartial, in compliance with the Code of Practice or with the Respondent's own internal disciplinary procedures.    In the circumstances the Respondent has conducted itself in an entirely unreasonable manner and failed to utilise fair procedures in the conduct of its own internal disciplinary process. 

The Claimant will also rely on the fact that an advertisement for his position was created by the Respondent) prior to the disciplinary hearing of the 17th of February 2022 and prior to him receiving notice of termination and it is submitted that the process undertaken by the Respondent was prejudged and was not going to end in anything other than the Claimant's employment being terminated.       

The Claimant will also rely on the fact that in relation to the first appeal of the formal written warning which Ms. Orla O’ Dwyer heard on the 21st June 2021 and in an undated letter advising of the outcome of the said appeal stated I would however state that I believe that a proper job description of what would be expected - should be outlined to you and that this should be described for both Solvar and NJO in as much detail as possible — this has not been done to date.   It is submitted that it was entirely unreasonable for this appeal to uphold the decision previously made in circumstances where the foregoing statement is clearly an admission that the job description and what would be expected of the Claimant was deficient.

In the Respondent's letter dated the 26th May 2021 it states [T]he purpose of[he disciplinary hearing is to discuss what the Company view as your failure to co-operate With and complete a reasonable request from your Line Manager on Monday 24th May when requested to complete NJO Design work, The Claimant relies on this statement as an admission that the work he was requested to do was not work for his employer, the Respondent? and which in the circumstances amounts to work which he was, as a matter of contract, not obliged to perform.

 In the circumstances the termination of the Claimant's employment by the Respondent amounts to an Unfair Dismissal.

Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“In determining for the purposes of this Act whether the dismissal of an 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 [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

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…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

The respondent advised the hearing that prior to COVID its main income was from Celtic Jewellery which was heavily reliant on the tourist industry.   The respondent stated that during COVID it could no longer rely on tourism and so it had sought to diversify and promote NJO Jewellery as this was aimed at a different market.

The respondent stated that the work the complainant was asked to do was no different except that he was photographing different jewellery against different backgrounds.

The respondent advised the hearing that the CEO Mr. Geoff O’Donoghue, had a meeting with the Complainant on 8 February 2021 where he explained that certain retail work had dried up (due to a drop in tourist retail sales arising from the COVID-19 pandemic) and that the outlook for such sales was particularly uncertain for 2021. Mr. O’Donoghue explained that the focus going forward was going to be on providing retailers with digital resources to help drive on-line sales of both Solvar and NJO products.  The Complainant at that stage raised no objections to the company’s plans.

It is clear from the evidence adduced that there is no dispute but that the type of work was the same i.e., Photography and Graphic design.

Both parties at the hearing gave evidence that the work the complainant was being asked to carry out was still photographing Jewellery but that it was NJO design Jewellery and not Solvar Jewellery.

I note that the complainant in this case had initially been called to a disciplinary meeting in May 2021 which resulted in him being given a written warning in June 2021 for failing to carry out an instruction from his manager the instruction being to complete photography work on NJO products.  The complainant received a written warning following this disciplinary meeting.   The complainant at the hearing argued that he was employed to photograph Celtic Jewellery and not NJO jewellery products.

The complainant has also argued that the work of photographing NJO products falls outside of his contractual duties.   In this regard the complainant has lodged a separate complaint in respect of his terms of employment.  

I note that the Complainant’s contract of employment specified that he was “employed as a Design Dept Operator/Graphic Designer” and could be “required to perform such other duties outside the normal scope of [his] job title as may be reasonably required … from time to time.”

I also note that the Employee Handbook specifies that: “Your job title does not limit your duties and in that regard, you are expected to be flexible in the execution of your duties and perform whatever duties that may be required of you from time-to-time in the interest of the successful achievement of the Company’s overall objectives.

During the course of your employment, it may be necessary to expand your duties, within the general scope of your position or change your job function. The Company reserves the right to assign other duties to you at any time, it being understood that you will not be assigned duties that you cannot reasonably perform.”   

The respondent submits that it had no choice but to diversify and seek alternative stream of income as the Celtic jewellery side of the business was reliant on the tourist industry and during Covid this was non-existent.  The respondent states that it was trying to keep the jewellery business afloat and keep the complainant in employment.  The respondent added that without the NJO product work there was not enough work for the complainant.

It also emerged at the hearing that the complainant had previously carried out freelance design work for NJO before NJO was acquired by Solvar and that the only difference in his previous work for NJO and the work he was being asked to carry out in May 2021 was that he had been paid separately for the NJO work he carried out before it became part of Solvar.

The respondent advised the hearing that it had at that time given the complainant permission to engage in the freelance work for NJO which at the time was owned by Natasha Obernik the daughter of one of the directors of Solvar.

The respondent advised the hearing that it was clear that the complainant did not object in principle to photographing NJO products but that the issue was that he was not going to be paid extra for it.  The respondent also advised the hearing that the complainant had also stated that he wasn’t comfortable doing NJO work as he and Natasha Obernik had a personality clash and he did not want to work with her.  The respondent in reply to this had told the complainant that Fiona Spencer would be managing this work and that he would be working to her as usual and so the issue of his personality clash with Natasha would be avoided.   

The respondent added that there was no question of the complainant not having the time or capacity to carry out the NJO work as the complainant had after Covid come back to work on a 4-day week basis but when asked by the respondent to do a 5-day week he refused stating that there was no need as the work level didn’t require it.

The respondent also advised the hearing that it was left in a position where it was having to outsource NJO work to external contractors at a higher cost rather than utilising the in-house skills of the complainant as he was refusing to undertake the work and at a time when the complainant was not working to full capacity.    The respondent advised the hearing that the outcome of the appeal of the first written warning was an agreement that the complainant would undertake NJO work for a trial period of 3 months.   The complainant however refused to engage in this trial stating that he had previously tried it and it hadn’t worked.

The respondent CEO, Mr. O’Donoghue in his evidence to the hearing made it clear that he did not want to dismiss the complainant and had given him every chance to remain in the employment, but he had been left with no other option but to dismiss after 7 months of the complainant refusing to carry out the work he was being paid to do and despite being warned of the consequences of such refusal. 

As regards the proportionality of the decision to dismiss I note that the complainant had previously been issued with a written warning in respect of the same conduct in June 2021 and with a Final written warning in respect of the same matter in July 2021 before being ultimately dismissed for the same conduct in February 2022.   Thus, it is clear that the respondent in this case did consider lesser sanctions and did issue the lesser sanctions over the previous 7-month period, but the complainant continued to refuse to carry out the work following these warnings.

The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘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 if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view.’

Having regard to the totality of the evidence presented, I find that the sanction of dismissal given the circumstances of this case falls within the band of reasonableness.   I therefore find the that the dismissal was both reasonable and substantively fair and I must now examine if it was procedurally fair prior to making a decision on whether the Complainant was unfairly dismissed.

PROCEDURAL FAIRNESS

It is well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. (See In Re Haughey [1971] IR 217). In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures. It is an essential feature of fair procedures that an employer follows the procedure set down and understood in the employment when dealing with disciplinary matters.

In examining the procedural fairness surrounding the dismissal, I note that Mr. O Donoghue played a multiplicity of roles throughout the disciplinary process.     On 29 April 2021, Mr. O’Donoghue emailed the Complainant directing him to undertake work that was assigned to him by his line manager and noted that refusal to carry out a “legitimate and reasonable request” might lead to disciplinary action being taken.   Mr. O’Donoghue held the disciplinary hearing arising from this and issued the complainant with a formal written warning.  This was appealed to Ms. Orla O ‘Dwyer who upheld the decision.   The complainant continued to refuse to undertake the work and Mr. O ‘Donoghue again chaired the second disciplinary meeting after which the complainant was issued a final written warning, the appeal on this occasion was to Mr. Obernik a director of the company.  The complainant did not appeal on this occasion.  I note that Mr. O Donoghue again chaired the 3rd disciplinary hearing which resulted in the complainant’s dismissal and again the appeal was to Mr. Obernik which the complainant did not appeal.

Mr. O Donoghue at the hearing explained that the reason for his extensive involvement was firstly that Solvar was a small business and didn’t have enough staff at that level to have each stage handled by a different person but he added that he would have had less involvement but for the fact that the HR manager was on maternity leave at the time and he was filling in for her and doing her work and that she would normally have been a part of the process but that he had filled her role due to the timing of the matter. 

The respondent at the hearing made much of the fact that the complainant did not appeal the decision to dismiss but instead submitted a claim to the WRC 5 days after his dismissal.  The complainant at the hearing stated that the reason he did not appeal is because he felt he would not get a fair hearing as the person nominated to hear the appeal was one of the Directors, Mr. Obernik against whom the complainant had previously raised an issue.    

The respondent advised the hearing that the issue in respect of Mr. Obernik was not in relation to the disciplinary or appeals process and had been resolved.  The respondent stated that the issue arose from the complainant having overheard Mr. Obernik in the shared kitchen complaining that the complainant following a period of 3 months out sick did not notify his line manager in respect of his return to work before showing up at work after being on sick leave for a period of 3 months.  This was during a time when employers were mindful of COVID protocols in respect of employees attending work.   The complainant overheard this and raised it with his line manager that day following which Mr. Obernik apologised to the complainant for his actions the next day and so the respondent considered the matter resolved. 

While I accept that the respondent might reasonably have concluded that the issue between the complainant and Mr. Obernik had been dealt with and an apology issued to the complainant, the involvement of Mr. Obernik as an appeals officer was less than perfect given that the complainant had previously raised an issue against him notwithstanding the fact that that issue had been resolved and an apology issued to the complainant by Mr. Obernik.

I note also the respondent’s position that that it was not relevant as the complainant chose not to appeal the decision to dismiss but as counter to that is the complainant’s position that he felt there was no point in appealing as he felt he would not get a fair hearing from Mr. Obernik.

The respondent in the circumstances in order to avoid any allegations in respect of any unfairness in the appeal process whether perceived or real could and should have nominated a different individual to hear the complainant’s appeal.

In view of the above I have to conclude that the procedures which were utilised by the Respondent in deciding to dismiss the Complainant were somewhat flawed and were not in accordance with the principles of natural justice or, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).  I therefore find that the dismissal was procedurally unfair.

REDRESS

Section 7(2) of the UD Act requires that I consider the measures adopted by the Complainant to mitigate his loss and the extent to which the conduct of the Complainant contributed to the dismissal.

In Sheehan v. Continental Administration Co Ltd UD 858/19997 the Employment Appeals Tribunal considered the efforts to mitigate in pursuant to Section 7(2)(c) of the UD Act. In the judgement it was held:

“A Complainant 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 Complainant 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.”

Section 7(1)(c)(ii) of the UD Act provides as follows:

 “If the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances”

Section 7(2)(f) of the UD Act provides that in determining the amount of compensation payable under Section 7(1) regard shall be had to “the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

In assessing the level of compensation to be awarded I note the following:

The complainant provided documentary evidence of his attempts to secure alternative employment since his dismissal.   The complainant advised the hearing that he had not secured alternative employment in the 8 months since his dismissal despite having submitted numerous job applications.   The respondent at the hearing noted that the complainant had confined his search for a job to a very niche section of the market and suggested that he might have found employment if he had had broadened his search.    The respondent at the hearing also submitted that the complainant as a photographer could have utilised his skills and become self employed during this period as many photographers offer their services on this basis, if he wished to find employment.

The complainant during questioning on his failure to secure employment advised the hearing that an issue had arisen in interviews when he was asked by prospective employers why he had left his previous employment.   The complainant advised the hearing that he had replied to this interview question by stating that there were contractual issues and that the matter “was in the hands of the WRC”.    The respondent at the hearing made the point that in giving such a response to prospective employers the complainant was in effect sabotaging his chances of securing alternative employment.

I note that the respondent in this case had submitted that the complainant was summarily dismissed but I also note that they had in any event paid the complainant 8 weeks’ pay at the time of his dismissal.

Taking all of these factors into account and for the reasons set out above, I consider it just and equitable in all the circumstances to award the Complainant compensation in the sum of €3,500.

For the reasons set out above I decide that whilst there were substantial grounds justifying the Complainant’s dismissal the procedures utilised by the Respondent were flawed and consequently, I decide that the Complainant was unfairly dismissed, and the complaint is well-founded.

I find that the appropriate redress in all the circumstances of the present case is compensation in the sum of €3,500.