Complainant

Respondent

Parties

Noel  Gamble

Patrick McCaffrey & Sons Limited trading as McCaffrey Contractors

Representatives

Terry Gorry, Terry Gorry & Co Solicitors

Declan Thomas , 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-00035889-001

28/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035889-002

28/04/2020

Arising from a pay dispute the Complainant and three of his colleagues threatened and then proceeded to not attend work. As a result, the Complainant and his three colleagues were dismissed by the Respondent.

The Complaint submits that the dismissal was unfair.

He submits also that he was entitled to minimum notice of 8 weeks.

The Respondent submits that the dismissal was fair and that no minimum notice attaches to a dismissal for reason of gross misconduct.

At the Adjudication, the Respondent witnesses were:

Marie McDevitt - Investigator

Hugh Morrow – Contracts Manager

Jim Glackin - Disciplinary/ Dismissal decision maker

Stephen Friel – Appeal decision maker

The Complainant witnesses were:

The Complainant.

The Complainant gave evidence under affirmation. His evidence in synopsis was as follows:

1.       He started work with the Respondent as a general labourer in 1999

2.       He was dismissed 21 February 2020

3.       He had no disciplinary issues during his 21 years of employment

4.       In January 2020 he and three of his colleagues were unhappy about their level of pay.

5.       In 2008 their pay rate was €12.20 per hour. Following the economic crash in 2010 they agreed to a reduction in pay to €11.60 per hour. In 2018 their pay was increased to €12.18 per hour. From then on despite the company being very busy and despite multiple requests to increase their pay, their pay did not increase. At the time of his dismissal the Complainant was on a lower rate of pay than he had been on in 2008.

6.       Pay increases were typically agreed at the start of each year. In January 2020 their hourly rate remained unchanged from the previous year.

7.       The Complainant worked within a team. They were all very unhappy with the pay.

8.       On Wednesday 15 January 2020 the Complainant and his three colleagues approached their line manager and foreman, Noel Kerrigan (who was aware of their unhappiness about pay) to tell him that they intended to not turn up to work the following Monday unless someone from management came to talk to them about their pay. They instructed Noel Kerrigan to inform management, which he did.

9.       Two days later on Friday 17 January, no response having been received directly to them, the Complainant asked Noel Kerrigan if management had responded to him. He told them that they had not. He advised them not to come back to work until the Company had got in contact with them. He told them “don’t make a c**t out of me and turn up for work on Monday” – as this would make a liar out of him.

10.   Neither the Complainant nor his team members, came into work on Monday 20 January. Given that they had been told by Noel Kerrigan to sit tight and wait for the management to contact them, that is what they did. 

11.   The next day the Complainant received a letter inviting him to an investigation meeting the following day on 23 January 2020.  

12.   During the investigation meeting it became apparent that Noel Kerrigan denied ever telling them that he had advised them to stay away from work on the Friday.

13.   During the investigation when it seemed that their jobs might be on the line, the men all accepted that they should not have stayed away from work, given that it was unauthorised absence. They asked for  their positions be maintained. They explained that they were aggrieved about the pay issue. They were aggrieved that management refused to engage with them on pay but they accepted that it was wrong to take the matter into their own hands.

14.   The Complaint said that everyone accepted that Noel Kerrigan told management on Wednesday 15 January that thee men intended conducting a down tools or “lightning strike” on the following Monday. Despite this, none of them were warned against doing this. If it was regarded as such a serious matter, why did management not issue them with a warning that if they did as proposed, that they could face dismissal. It was as if they were cynically waiting for them to do it, which is one way to get rid of staff who have 21 years of continuous service and redundancy rights attaching. 

15.   The Complainant’s complaint is that the evidence of the men was that Noel Kerrigan had told them to not come back into work until they heard from the company and that this was said not only in person to the men but in telephone calls to the Complainant both before and during the weekend. The timing of the conversation, being on the Friday was significant however because it showed that while Noel Kerrigan, their foreman and line manager while not part of the original decision, did encourage them to do what they had planned.

16.   The Complainant pointed to the investigation statement of  (another of the 4 workers) which stated that NK advised them not to come into work on the Monday until they heard further from him.

17.   Had Noel Kerrigan not supported their action, they might not have carried it out.

18.   The Complainant submitted that the evidence of Noel Kerrigan during the investigation - that he did tell them not to come back to work until the Company contacted them took place on the Monday 20 January – after they had failed to attend to work, was untrue. He was certain that that conversation was prior to the weekend because when they didn’t attend work on the Monday morning, they did so with the belief that they had his support.

19.   The Complainant submits that the dismissal was unfair because his evidence and that of his co-workers who were dismissed was discounted whereas the evidence of Noel Kerrigan was favoured, even though he was outnumbered.

20.   He accepts that he was wrong to not attend work however the decision to dismiss him was disproportionate given the fact that he had worked for the Respondent for 21 years with little or no trouble and given that they had been on a reduced wage since 2010. He submits that regardless of his wrongful conduct, the offence was lessened given that they all believed that their foreman advised them to do it and his long years of service should have counted for something. It was not reasonable to dismiss him for not working for one day given that they had a genuine pay grievance that was not being addressed by the Respondent Management.

21.   His loss of earnings from when his pay was stopped (17 January 2020 – 27 May 2020) was 18 weeks, €9204.30.

The Complainant was cross examined during which he gave the following evidence:

22.   He accepted that he did not make any attempt to contact management between Wednesday 15 January and Monday 20 January 2020. He said that having raised the threat of a strike on the Wednesday, he expected management to contact him, not the other way around.

23.   He still does not understand why no one made an effort to contact them between Wednesday and Monday, unless they wanted an opportunity to dismiss them.

24.   He accepted that it was an unauthorised absence from work.

25.   He denied it was a collective decision. Each of the men decided themselves and some men (EMcC) chose not to join the action.

26.   At the investigation meeting on 23 January 2020 he admitted that it had been a rash and stupid idea but the countless attempts by him to get a pay rise before then had been ignored.

27.   He denied that Noel Kerrigan was simply clarifying back to the men what they wanted him to report to management. He said that Noel Kerrigan explicitly told them not to come into work on Monday. That conversation did not take place after Monday, because why would he have told them after the event.

28.   On the Friday he told them that they were “not to make a c**t out of me” and that they were not to return to work until the Company made contact with them.” Why again would Kerrigan have said this if it were after the event.

29.   If someone is lying as to when the conversation took place the Complainant denied that it was him. His colleague BT corroborated this conversation exactly and said it took place on the Friday when they spoke to Noel Kerrigan before they left work for the weekend, when they asked him if he had heard back from management.

30.   The Complainant accepted that he received a disciplinary warning in 2017 for time sheets but said this warning had well expired by the time this issue arose.

31.   He accepted that he knew how the Respondent grievance procedure worked and that he did not utilise it.

32.   He accepted that during the disciplinary hearing he conceded wrong-doing but asserted that the offence should have been treated less harshly given what Noel Kerrigan had told them to do and given the ongoing pay issue.

33.   When asked why would Noel Kerrigan have lied, by creating a problem for himself having no team to work on the Monday, the Complainant did not respond.

34.   He accepted that his losses were 3 months from 21 February 2020 (the date he was dismissed) to the commencement of his new job on 27 May 2020, although he also says that he was not paid from 20 January. But he accepted that he did not work after Friday 17 January.   

35.   He said he could not mitigate his losses from March until May 2020 because of Covid and that he did well to find work in May 2020, given lockdown constraints.

In re-examination the Complainant gave the following evidence:

36.   Their foreman Noel Kerrigan was always supportive of their pay concerns. He had always told them “if you don’t ask, you don’t get” He had always got on well with Noel Kerrigan.

37.   Despite knowing of their intention to strike on the Monday 20 January from the previous Wednesday, no one either from management or the foreman told them – don’t do this, you could lose your jobs. The reverse was the case. Noel Kerrigan was not involved in the actual decision but having told them of their plan, he told them, that if they were threatening a strike, and asking him to pass on the warning to management that they couldn’t then not go through with it. That is what they understood by Noel Kerrigan’s comment to them on the Friday 17th January: “don’t make a c**t out of me.”

38.   And even if this was all a misunderstanding, which the Complainant denies (the foreman was very clear when he spoke to them) the Respondent management should have taken the possibility of this misunderstanding into account during the investigation when determining whether the actions constituted gross misconduct or not.

39.   The Complainant denied that his actions were serious enough to warrant gross misconduct. This was a pay dispute that was handled badly by him and for which he was sorry but his actions need to be considered in light of the his belief that; they had a genuine pay dispute, all they wanted was a discussion, requests to date had got them no-where, he had a good work record for 21 years and the foreman (his line manager) supported their proposed action and told them not to return to work until the Respondent contacted them.

Submissions on behalf of the Complainant were

40.   That the dismissal was unfair

41.   This all arose out of a pay dispute in circumstances where the Complainants pay in 2020 was less than it was in 2008.

42.   That the evidence considered by the disciplinary officer and appeals officer was weighted against the Complainant and was weighted in favour of Noel Kerrigan’s version of events.

43.   The Complainant’s long and problem-free work record was not considered by the Respondent in determining whether his actions constituted gross misconduct.

44.   The sanction of dismissal was disproportionate

45.   In assessing compensation and calculating losses arising from the dismissal an Adjudicator is not confined to actual loss but may also take account of loss of redundancy and other statutory rights (ADJ 28766)

Under oath Hugh Murrow, gave the following evidence:

1.       He is the contracts manager for the Respondent

2.       On Monday 20 January 2020 Noel Kerrigan rang him to tell him that the Complainant and three other members of that team had failed to attend work.

3.       The previous Wednesday 15 January Noel Kerrigan rang him to say that the four workers were threatening not to work on Monday 20 January unless someone from management agreed to meet them to discuss their pay.

4.       Noel Kerrigan was passing on a message from them. He was not involved in the decision.

5.       Until 15 January Hugh Murrow was not aware of any pay dispute.

6.       He relayed the message to Maire McDevitt but was not sure if he told her on 16 January or later, but he definitely told her before the end of that week.

7.       They looked at the employment contracts and a letter was drafted, inviting the complainant and the other men to investigation meetings.

8.       He had no problems with the Complainant before this. He was surprised by the Complainant’s conduct.  It was out of character. If someone wanted a pay-rise there is a grievance process to be followed.

9.       After the non-attendance at work on Monday 20 January an investigation was commenced.  

10.   The letter that went to all four workers advised them of their right to be represented and attached the Respondent disciplinary policy. All proper processes were followed.

11.   The investigation meeting with the Complainant took place on Tuesday 23 January 2020.

12.   The Complainant told the investigation meeting that he was waiting to be contacted by the Respondent following a message delivered on their behalf by Noel Kerrigan on 15 January.

13.   No-one suggested that Noel Kerrigan had been part of the decision to strike. The Complainant did not involve Noel Kerrigan at this first meeting but later while two of the men said that Kerrigan had told them to not turn up to work until the Company contacted them. He and one other said that this conversation had taken place on the Friday.

14.   AS part of the investigation Noel Kerrigan was asked and he denied that the conversation took place on the Friday but said that on the Monday, after they had failed to attend work he was told to advise them not to attend work until the Company contacted them but that was because an investigation process had then been commenced.

15.   Hugh Murrow was not the investigator. He was a witness in the Investigation being conducted by Maire McDevitt.

Hugh Murrow under cross -examination gave the following evidence

16.   When asked why did he not intervene between being informed of the threatened action on 15 January and 20 January, when the men failed to attend work, he said that he wasn’t sure if it was banter or a real threat.

17.   He chose not to deal with a problem unless it actually became a problem. He expected the Complainant to appear for work. He thought it was a false threat.

18.   The Complainant accepted wrong-doing during the investigation.

19.   The Complainant should have raised a grievance about pay rather than take the matter into his own hands and prejudice the Respondent’s business.

20.   The Respondent certainly did not choose to lose four good workers. They were experienced and they were needed but their action was wrong and needed to be responded to. You cant threaten your employer.

21.   Noel Kerrigan may have phoned him on 16 not 15 January 2020. He could not be sure about this.

Under affirmation Marie McDevitt gave the following evidence

22.   On Monday 20 January 2020 she was told by Hugh Murrow that Noel Kerrigan informed him that the Complainant three other workers had taken unauthorised absence.

23.   On Tuesday 21 January, as Investigator, she wrote to the Complainant and the other three workers inviting them each to an investigation meeting.

24.   She accepted that only one day of unauthorised absence had been taken at the point when the decision to commence an investigation was taken.

25.   Her role was as investigator and thereafter the matter was referred to Jim Glackin to hold a disciplinary meeting.

26.   At the investigation meeting the Complainant accepted that his decision had been a rash and one which he regretted.

27.   She did not accept that during the investigation meeting that an argument developed between the Complainant and Mr. Murrow or that Murrow was biased. She was the Investigator. Murrow was a witness.

28.   As part of the Investigation Noel Kerrigan was interviewed on 23 January. He denied telling the men not to come into work and not all four men had said that anyway during their investigation interviews. One had confirmed what they asked him to relay to management, not that he sanctioned it or was involved in this decision. The evidence of the four workers was not consistent.

29.   She prepared the investigation report, which included that the actions of the Complainant gave rise to a disciplinary issue and forwarded it to the disciplinary officer, Jim Glackin

Under cross examination Marie McDevitt gave the following evidence:

30.   Three of the four men did say that Noel Kerrigan had told them to not return to work until the company contacted them, but the timing of when that conversation took place is what is most relevant. If it was after Monday then the unauthorised absence had already occurred and an investigation was then in being and this is when Noel Kerrigan says he said this to them. The men could not assert reliance on Noel Kerrigan advised them if what he said was after the fact. Only two of thee, the Complainant and one other said that he had encouraged them on the Friday not to do in on the Monday.

Noel Kerrigan gave evidence under affirmation as follows:

31.   He did not authorise or encourage the four men to not attend work on Monday 20 January. He would have no authority to do this.

32.   He was told by them after they had decided on this plan. He was told this on the Wednesday. They asked him to relay this to management, which he did. He did not advise them on this. They were set on a plan. All he said was that he would make the call on their behalf, as asked.

33.   He told Hugh Murrow on the call on Wednesday 15 January that the men were looking for a pay rise and they intended not to work on Monday unless someone from management met with them.

34.   Hugh Murrow did not get back to him between Wednesday 15 January and Monday 20 January.

35.   The matter was out of Noel Kerrigan’s hands. It was their kite to fly and he neither supported it or criticised it. It was their plan, not his.  He said he told them that if he heard back from management that he would let them know, but he didn’t.

36.   He thought that it was his obligation as their foreman to ask management on their behalf.

37.   During the investigation he was asked if he advised the men not to attend work and he said that he did not. Because he had not.

38.   On the Monday the four did not attend work and he rang Murrow to let him know.

39.   The Complainant rang him on the Monday and he said as soon as he heard anything he would let them know. He accepts that he did say – sit tight you might just get back, but that was on the Monday. He refutes any assertion that he said this to them on the Friday before the Monday no show.

40.   It was only after the disciplinary process had commenced that Murrow told him to tell the four men not to come back to work until the Company contacted them, which he did. This definitely happened on the Monday and definitely was not said on the Friday.

41.   On the Monday 20 January when the four men did not show up to work they got other workers to do the work. It was not too difficult to manage.  

Noel Kerrigan was cross examined as follows:

42.   When asked why had he not stopped the men from carrying out their plan, he said that the knew the men and knew that they intended carrying out the threat. They felt hard done by on the pay issue and wanted to take a stand. It wasn’t up to him to tell them not to do what they had planned. He knew the men were unhappy about their pay.

43.   When asked what Hugh Murrow’s response was when he informed them of the men’s plan, he said “let it sit to see if will they or will they not.” This was not encouragement of the strike plan.

44.   The reason that he expected that the men blamed him was when the investigation commenced, they needed to come up with an excuse for what they did. He was surprised given that he knew them a long time although it was noteworthy the Complainant did not blame him initially.

Jim Glackin gave evidence under affirmation as follows:

45.   A disciplinary hearing took place on 11 February 2020.

46.   He read the investigation report, the statements and minutes of the investigation prior to the disciplinary hearing.

47.   The Complainant was given a chance to know the allegation against him and was afforded the right to representation at the hearing.

48.   In addition to the report Noel Kerrigan made a statement accepting that he had spoken to the Complainant on the Monday 20 or Tuesday 21 January in which he said – be careful what it said at the (investigation meeting) on 23 January and “don’t make a liar/c**t out of me.”

49.   Having considered the evidence given at the disciplinary hearing Jim Glackin made the decision to dismiss the Complainant on grounds of gross misconduct. This was based on the Complainant admitting that he had deliberately threatened not turning up for work he then carried that threat through. That constitutes gross misconduct form of absenteeism, as set out in the Company definition of gross misconduct in the employment contract.

50.   The Complainant’s actions were serious. The work that the team were doing was time specific and penalties applied for failure to adhere to a time schedule of work. The Complainant knowingly exposed the Respondent to a risk despite knowing that the work absence was wrong.

51.   In terms of the Complainant’s acceptance that his decision was rash, Mr. Glackin did not agree. it was a one that had been threatened on Wednesday 15 January and the Complainant had until Monday 20 to decide whether or not to go through with it or not.  It was not rash or hot headed. It was a premeditated action which was wrong and seriously wrong. The Complainant undermines the trust and confidence between him and his employer.

52.   The damage to the company’s work but also to the company’s reputation.

53.   Absenteeism is identified in the contract as being an action that can constitute gross misconduct

Under cross examination Jim Glackin gave the following evidence:

54.   The dismissal was not a way of getting rid of long-term employee who had redundancy rights. There was no question of redundancies being made. The company was busy. The Complainant was needed.

55.   Noel Kerrigan’s evidence that his advice (to not return to work until the company advised them to do so) was not given on the Friday, it was given on the Monday was corroborated by another worker on the team who had chosen not to participate in the strike action, EMcC.

56.   He believed Noel Kerrigan’s evidence over the striking men because Noel Kerrigan had no reason to advise the men not to turn up to work. The men never suggested that he was involved in the idea, so there was no reason for him to support the plan. Why would Noel Kerrigan make trouble for himself by risking them not coming to work when he needed the work to be done.

57.   In response to the question as to why Hugh Murrow – knowing that the plan was afoot – did not do something to stop it, he answered that Hugh Murrow never thought that they would actually do it. It was a stupid plan that was only likely to get them into trouble.

58.   He did not accept that dismissal was an over-reaction. The Complainant attempted to hold the Respondent to ransom. That is not acceptable conduct.

59.   He did not take into account the Complainant’s long service or his good work record. This action was serious that the Complainant had no right to do what he did. It broke the trust between him and management and a finding of gross misconduct was reasonable and a dismissal was one of a band of reasonable responses to that finding.

60.   The Complainant loss of wages claim can only run from the date he was dismissed and not any earlier date. 

61.   He was not paid from 17 January 2020 because he did not work after then.

Under affirmation Stephen Friel gave evidence as follows:

1.       He was an independent appeals officer who heard the Complainant’s appeal.

2.       The Complainant’s appeal was that the finding of gross misconduct was an over-reaction to what had occurred and should not have been decided given that the evidence of Noel Kerrigan was clear – he had not said anything to encourage them to strike on the Monday.

3.       The other basis for the appeal was that his long and good service record should have been taken into account.

4.       In response to this Stephen Friel found that the bystander evidence supported Noel Kerrigan’s evidence. EMcC said that Noel Kerrigan had not instructed the group to not return to work. The only people who suggested this were two of four men who were in trouble and they needed an excuse for what they did.

5.       Also one of the four stated that Noel Kerrigan was only verifying what the four men had said to him, as opposed to supporting or agreeing with their proposed action.

6.       None of the four suggested that Noel Kerrigan had been the author of the plan and therefore they (including the Complainant) were responsible for their actions, no one else.

7.       He felt that the finding of gross misconduct was reasonable and the decision to dismiss the Complainant was reasonable.

8.       He felt that a final written warning was not an option. Either the finding of facts were correct or they weren’t. If they were, even as a once off offence, the sanction of dismissal was reasonable. As the finding of unauthorised absence was conceded the Respondent were within contract by categorising this as gross misconduct for which dismissal was justifiable.

Under cross examination Stephen Friel gave as follows:

9.       Of the four men involved only two (the Complainant and BT) said that Noel Kerrigan advised them on the Friday not to come in on the Monday.  DK (one of the four) agreed with Noel Kerrigan that it was subsequent to the Monday that Noel Kerrigan had said this to them. BMcG (another of the four) did not say that it was on the Friday and EMcC (the independent worker) corroborated Noel Kerrigan. 

10.   It was reasonable therefore (four against two) to favour Noel Kerrigan’s evidence that this advice was given after and not prior to Monday 20 January.

11.   When it was put to him that the line “don’t make a c**t out of me” only makes sense if it is a warning, ie before the event, Mr. Friel did not accept this and Noel Kerrigan accepted that he may have said this, but it was after the investigation had commenced, when Noel Kerrigan was concerned that they would try to implicate him during the investigation meetings.  

12.   He accepted that neither the Disciplinary Officer nor he gave consideration to the corroborative evidence of BT (one of the four) who had said that it was on the Friday but that was because there was more evidence corroborating what Noel Kerrigan said than what the Complainant said.  The Complainant was wrong when he suggested that all four men spoke with one voice in claiming that the strike had the support of their foreman. The evidence only suggests that two of the four asserted this and a fifth (EMcC) agreed with Noel Kerrigan. The available evidence supported Noel Kerrigan’s version of events.

13.   When it was put to him that the Complainant was raising a grievance by asking Noel Kerrigan to inform Mr. Murrow of the intended action, the witness disagreed. A threat of an ambush strike is not a way to raise a grievance.

14.   Stephen Friel found that dismissal was a proportionate sanction for what the Complainant’s conduct had been.

End of Respondent evidence

Submissions on behalf of the Respondent were that:

15.   There was a common design by the Complainant and three colleagues to give the Respondent an ultimatum that they would down tools on Monday 20 January 2020 unless a pay rise was discussed with them.

16.   The Complainant proceeded to carry that ultimatum out with his three colleagues.

17.   Their conduct was extreme. It is simply not permissible to threaten an employer in order to obtain a pay rise.

18.   The reason that Noel Kerrigan’s evidence was favoured over the Complainant’s was two-fold. Firstly, he had nothing to gain in them not working on the Monday. It presented him with a problem where work needed to be done but he was short four workers. Secondly only two of the four striking workers stated during the investigation that he had actively encouraged their action. The other two did not state this and a fifth who was also part of the work team but wanted no part in the action, stated that Noel Kerrigan did not say anything on the Friday to encourage the action. On the balance of probabilities Noel Kerrigan’s evidence was more credible and the Respondent was within their right to favour his version of events.

19.   Given that the Complainant and his colleagues proceeded to down tools as they had threatened, the work absence was capable of being reasonably treated as an act of gross misconduct, for which the sanction of dismissal was also reasonable.

This is a complaint for unfair dismissal and minimum notice.

As the authorities have repeatedly found, if a dismissal is justified on grounds of gross misconduct, there is no entitlement to minimum notice.

Unfair Dismissal Complaint CA-00035889-001

While the evidence in this adjudication conflicted, important concessions on behalf of the Complainant were made during the investigation and disciplinary processes.

It was not disputed that the Complainant along with three of his colleagues advised the Respondent on 15 January 2020 that unless a member of management engaged with them on their pay concerns, they intended not to attend work on Monday 20 January 2020.

They then proceeded not to attend work on Monday 20 January 2020 and the Complainant accepted that this was unauthorised absence. This action was akin to a one-day work stoppage, which is sometimes colloquially referred to as a “wildcat strike” or a “lightning strike.”

Is there a right to strike?

There is no right to strike under Irish law. There is immunity from penalisation (including dismissal) if an employee, as part of a trade union is involved in a trade dispute engages in a lawful and authorised industrial action under Industrial Relations Act 1990.

There is no suggestion that the Complainant’s action was an action taken in furtherance of a trade dispute and the Industrial Relations Acts are not relied upon by the Complainant in this adjudication.

 The parties in this adjudication avoided use of the word strike, but an unauthorised strike is essentially what the Complainant and his colleagues did on 20 January 2020 and the Complainant does not dispute that on Monday 20 January 2020 he went on an intentional unauthorised strike.   

The question in this case is not whether misconduct occurred because it did. Rather it is whether the action was gross misconduct to justify a dismissal or whether it was ordinary misconduct to which a lesser penalty would attach and the employee would be entitled to minimum notice.

Gross Misconduct

I am satisfied that the actions of the Complainant were wrong. The Complainant conceded as much during the investigation.

I am also satisfied that the Respondent was entitled to find that the Noel Kerrigan did not actively support the men’s decision to not attend work.

The evidence of Noel Kerrigan during the investigation was credible and it was consistent with the evidence that he gave during the Adjudication hearing.  I found him to be persuasive and his evidence was supported by the fact that two of the men who went on strike with the Complainant did not claim during the investigation that he had encouraged their action on the Friday.  I accept that the Complainant and one other worker did claim this, but the statement that EMcC gave to the investigation, a man who wisely chose not to participate with this plan, also supported Noel Kerrigan’s evidence. In light of this conflicting evidence as there was more evidence to support than oppose Noel Kerrigan’s version of events, I find that the Respondent were permitted to give greater weight to this evidence to find that the Complainant’s actions, along with the other men, were authored only by themselves and were not supported by their foreman, actions for which they are responsible for.

However even if this is so, I am not satisfied that the actions of the Complainant amounted to gross misconduct. It came very close to gross misconduct however a peculiar factual aspect of this complaint is that the Respondent was forewarned of the plan to strike and yet did not respond.

The Respondent for reasons that are not clear to me, said nothing in response when it would have been very easy of Mr. Murrow to inform the Complainant via their intermediary, Noel Kerrigan that if the men did as they had threatened that they would face disciplinary action and could be dismissed.  Given that the Respondent was put on notice of this proposed action, I consider that it was not reasonable for them to be silent, wait and then punish.

Also the background issue of pay, colours my view on whether their actions were gross misconduct. The Complainant was on less pay in 2020 than he received in 2008. He had worked for the Respondent for 21 years. It is legitimate for an employee to request that the management meet with them to discuss pay. The Respondent witnesses did not deny that the men had been looking for a pay increase. Noel Kerrigan was aware of their concerns.  The threat of strike was made so that the requests for a pay rise would not continue to be ignored. All the men were looking for was a conversation about pay and it was not unreasonable that the management would give them the respect of making time to allow a conversation with them about pay or at the very least – tell them that they were threatening the company at their own peril.  I do not find that the Respondent was under an obligation to give them a pay rise, but in my view once the request was made either a conversation should have happened or the threat should not have been ignored. At the very least, a disciplinary warning should have issued at that point.

I also consider that the long and (nearly complete) unblemished work record of the Complainant not being considered by the disciplinary officer or appeal officer when they decided whether the action constituted gross misconduct or ordinary misconduct, was erroneous. This bad conduct was atypical of the Complainant. The Respondent witnesses said as such. They were surprised by the threat.  The Complainant’s satisfactory work record combined with a unmet request for a pay rise meeting provides an important context for why he acted in the wrongful way that he did. I do not accept the Respondent’s contention that trust was irreparably broken down. It was not reasonable for the Respondent to not meet them or at least not warn them of the impact that their proposed action could have. By failing to respond, it allowed the Complainant walk into the error that he had created but this also was done knowingly by the Respondent.

This is a fine margins case. While I accept that the Complainant’s actions were serious and were an inappropriate way of dealing with pay concerns, this was not typical of a man who had worked well for them for 21 years whose pay issue was a genuine problem. It was not reasonable to not take account of his long and committed work record.

The referral to “work absence” in the Respondent’s contractual definition of gross misconduct in my view should not have been interpreted to encompass what occurred here; a one-day stoppage to protest low pay which was out of keeping with his long service committed work.

I find that it was reasonable for the Respondent to treat the Complainant’s actions as misconduct but not constitute gross misconduct, which could justify a dismissal. The Respondent’s finding of gross misconduct as distinct from ordinary misconduct was unreasonable.  I find that a lesser sanction of a final written warning would have been reasonable.

I find that the Complainant was unfairly dismissed.

Contribution to Dismissal

Given the Complainant’s admitted wrong-doing I find that the compensation award should reflect the level of contribution which I find to be 50%. An employee is not permitted to deliberately not attend work when there is a grievance process available to him which was not utilised.

I do not find that he failed to mitigate his loss, given that his dismissal took place in February and was quickly followed by Covid lockdown a month later in March 2020 during which travel was limited to 2km and then 5 km during which a job search would have been challenging.  I find that finding replacement work on 27 May 2020 is evidence that he attempted as much as was within his power to do so to mitigate his loss.

Award

Based on the evidence provided, the financial loss that the Complainant suffered arising from his unfair dismissal was €7158.90. Given his contribution to the dismissal, I reduce this award to €3579.45

Minimum Notice Complaint CA-00035889-002

On the basis of the finding that gross misconduct was not a reasonable finding, it follows that the Complainant was entitled to be paid 8 weeks minimum notice based on a weekly salary of €511.35, i.e. €4090.80

Unfair Dismissal CA-00035889-001

I find this complaint to be well founded and that the Complainant was unfairly dismissed.

Award: €3579.45

Minimum Notice CA-00035889-002

I find this complaint to be well founded and that the Complainant is entitled to compensation to reflect 8 weeks of minimum notice.

Award: €4090.80

Unfair Dismissal – Gross Misconduct - Unauthorised work absence