UDD2447

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039756 (CA-00049793-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 17 November 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 31 October 2024.

The following is the Decision of the Court:-

DECISION:

Introduction

This is an appeal by Kieff Bosse against decision ADJ-00039756- CA00049793--001 of an Adjudication Officer in his complaints against his then employer Hendrick Hotel. The complaint was made pursuant to a contravention of the Unfair Dismissals Act (the Act).  In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Kieff Bosse is referred to as the Complainant and Hendrick Hotel is referred to as the Respondent.

This claim was lodged with the WRC on the 21st April 2022. The cognisable period for the purpose of the Act is 22nd October 2021 to the 21st April 2022. There are two linked claims as follows:  WTC/23/90 and ADE/23/137.

 Summary of Respondents submission and evidence

The Complainant was employed as a Senior Barman from the 22nd May 2019 to 5th April 2022. He was employed to work five eight-hour shifts over seven days. The Complainant was provided with a copy of the Respondent’s handbook which contains all its policies on the 14/8/2020.  On the 12th November 2021, there was an alleged incident of inappropriate behaviour and an allegation of misconduct against the Complainant. This was investigated by the Respondent who interviewed a witness to the incident as part of the investigation. The outcome was that it should move to a disciplinary hearing. On the 8th December 2021 the outcome of the investigation was sent to the Complainant who responded by alleging unprofessionalism and discrimination on the part of the Respondent.

 He indicated that he wanted to make a formal complaint about a witness from the November investigation. The Complainant was informed that this issue would be investigated separately, and he was provided with the equal opportunities policy and information around the grievance procedure. On the 13th December 2021 the Complainant was issued with a invite to a remotely held disciplinary hearing. The Complainant refused to attend. On the 4th January 2022 he was sent an email outlining the choice of two different virtual times and dates for the rescheduled disciplinary hearing. The Complainant responded by indicating that he wants to meet when everything went back to normal after Covid 19. The Respondent replied by email of the 6th January indicating that they wished to proceed with the disciplinary process.  The Complainant replied looking for access to CCTV footage and clock in information. Access to the CCTV footage was not provided as it was not within the remit of the investigation that had already been carried out.

The Complainant continued to email the Respondent on this issue and in relation to his grievance and started making allegations of bullying. He indicated that he did not believe he was contractually obliged to attend a virtual disciplinary meeting. On the 25th January 2022 as the restrictions had been lifted he was invited to a face to face meeting.  On the 26th January 2022 the Complainant advised that he had been to his GP and that he would reschedule the meeting in his own time. An issue then arose in relation to his medical cert as it was sent by WhatsApp but did not contain the name and address of the doctor, the doctor’s signature or the name and address of the Complainant. The Complainant was advised that he needed to submit a medical certificate containing those details.  The failure to produce a medical certificate continued for some time and when he was given an appointment for the Respondent’s doctor he responded, “No thanks”.

Parallel to these engagements the Complainant was submitting complaints about his hours, other staff and stating that management needed to show him some respect. On the 23rd of February 2022 an allegation of inappropriate behaviour and or conduct was submitted against the Complainant in relation to an incident on the 18th February 2022.  Due to the nature of the complaint, he was placed on suspension with pay pending the outcome of an investigation into same. On the 4th of March he was advised of an appointment with the Company doctor on the 8th March 2022 and separately was invited to an investigation meeting arising from the complaints against him. He replied with a series of comments about other staff members and stating that he would not be attending until he was physically fit. Further correspondence ensued with the Complainant stating he would have a meeting when it suited him.  The Complainant declined to attend the scheduled investigation meetings and disciplinary meetings and declined to attend the Respondents doctor.

By letter of 5th April 2022, he was advised that a date was set for the appeal hearing. The appeal hearing was held on the 29th April 2022, but the Complainant did not attend. On the 9th of May 2022 he was advised of the outcome of the appeal.as dismissed for gross misconduct and of the appeal process. In this case the dismissal of the Complainant arose from the conduct of the Complainant. He was offered every opportunity to engage with the process but declined to do so. It is the Respondent’s submission that the dismissal was fair.

Ms Drohan,  Hr Manager for Tifco group the Respondent in her evidence to the Court, confirmed that the Complainant was supplied with the grievance and bullying procedures in December 2021 and January and February 2022. The Complainant had lodged a complaint against her which was investigated but not upheld. She confirmed that he was also given the disciplinary policy when he started and at each stage of the process. She was appointed as chair of the disciplinary process and wrote to him on numerous occasions. On one occasion she bumped into him in the workplace and told him what was required in terms of a medical certificate. When she met him in February she went through the policies with him. In terms of his sick absence the correct doctor’s details were never provided. She confirmed that she only joined the company in December 2021. She confirmed that she placed him on suspension. As far as she was aware she responded o every email he sent to her.

 The next witness Ms Brady who is a HR Manager with the Tifco group told the Court that she carried out the investigation into the February 2022 incident. The Complainant declined to attend the meeting. She was prepared to show the CCTV footage at the meeting but could not email it to him as he requested because of GDPR restrictions. The meeting was being held off site in another hotel, but he declined to attend. The final witness for the Respondent was Ms Buckley who carried out the disciplinary process arising from the February 2022 incident. At this stage the Complainant was already on a final written warning. The incident in February was a serious incident relating to abusive behaviour. The Complainant refused to engage with the process and did not attend to put his side forward. She concluded that the appropriate sanction was dismissal.  The decision was not taken lightly but she felt in all the circumstances it was the appropriate sanction.

Summary Complainants submission and evidence

The Complainant submitted that he disagreed with the decision to dismiss him. It was his evidence that he went through a lot of problems during his three years with the hotel. He stated that when they sacked him, they did not give him any redundancy payment or ex gratia payment. It was his submission that after working for them for three years he deserved to get a redundancy payment. The Complainant confirmed that he had not attended the investigation or disciplinary or appeal hearings. He had asked for CCTV footage, and they would not send it to him. He stated that he did not know that they could dismiss him if he did not show up to the meetings. He also confirmed that he believed he medical cert he had sent by WhatsApp was sufficient and that he had declined to attend the Respondents doctor. The Complainant did not believe that he was obliged to attend their doctor. It was his submission that they had unfairly dismissed him.

The Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, 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.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Issue for the Court

Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

It is not for this Court to substitute its own judgment as to whether the dismissal was reasonable, the question the Court must answer is whether the decision falls within a range of reasonable responses of a reasonable employer.

In this case based on the facts before it, the Court finds that decision to dismiss was within the range of a reasonable response. The Court comes to this decision based on the fact that there was nothing put before the Court to suggest that the Respondent had not carried out fair procedure in coming to the decision to dismiss.  The Complainant had a contractual obligation to engage with the processes. The contract he signed clearly indicated that the policies and procedures formed part of his contract. He was also supplied on a number of occasions with the policies. He refused to attend the Respondent’s medical practitioner without any reasonable reason for doing so. He failed to engage with the investigation and or disciplinary procedure. He lodged an appeal but did not turn up for the appeal hearing.

 The Court finds that the decision to dismiss falls within the “range of reasonable responses of a reasonable employer” and therefore, the Court determines that the decision to dismiss was fair.

Determination

The Court determines that the appeal is not well-founded.  The Decision of the Adjudication Officer is upheld.  The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
26th November 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.