Complainant

Respondent

Parties

Adam Cowman

John Deere Forestry Limited

Representatives

Simon McCormick, Solicitor

Emma Davey, BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00051096-001

10/06/2022

Complaint of Unfair Dismissal

The respondent is a manufacturer of forestry and agricultural equipment and is based in Glenealy, in Wicklow.  They have 10 employees in Ireland.  The complainant commenced an apprenticeship as a construction plant fitter on March 15th 2021.  He was registered with the Education and Training Board’s apprenticeship programme, Solas, on April 28th 2021.  When he was carrying out the “on-the-job” part of his apprenticeship, he worked 40 hours a week at the respondent’s workshop and on forestry sites.  He started phase 2 of his college programme on January 4th 2022.  On April 25th, when a teacher found him wrestling on the floor of a classroom, he was instructed to leave the college and to return to his employer.  The next day, he was dismissed.  He continued apprenticeship training and he commenced with a new employer on May 23rd 2022.  At the time of this hearing, he was still with that employer.

It is the complainant’s case that, on April 25th 2022, he was engaged in “minor classroom antics with another student” and that his dismissal was unfair.  On behalf of the respondent, Ms Davey submitted that summary dismissal was warranted in circumstances that amounted to gross misconduct.  Ms Davey also submitted that two discipline reports issued by the college to the complainant amounted to warnings within the meaning of the respondent’s disciplinary procedures.

Summary of the Facts Leading to the Dismissal of the Complainant

The complainant commenced his apprenticeship with the respondent on March 15th 2021.  The evidence of the respondent’s managers is that there were problems with his conduct and that he didn’t listen or take instructions from experienced colleagues.  On two occasions, he left work without informing anyone, he drove a fork truck before he was trained to do so and he left a fuel hose jammed into a fork truck diesel tank and walked away, leaving fuel pouring onto the workshop floor.  In his evidence, the country manager, Mr Power, said that he had three meetings with the complainant to outline his concerns about his conduct and the quality of his work.  Two engineers complained about him and refused to work with him.  Mr Power said that the service manager, Mr Caffrey approached him before Christmas 2021 and said that he wanted to dismiss the complainant due to his conduct and his bad attitude at work.  Mr Power said that he wanted to give him a further chance to go to college in January and to see if the employment relationship would work out.

The complainant started the college phase of his apprenticeship on January 4th 2022.  On February 21st, having been absent for six out of seven Fridays, he received a verbal warning from the college.  On March 7th, he received a verbal warning for childish behaviour and “treating the workshop as a playground.”  On March 14th, he received a verbal warning for being absent on nine days between January 19th and March 11th.  On April 25th, his college instructor, Mr Frank Moran contacted the service manager, Mr Caffrey and informed him that the complainant had been engaged in “serious horseplay” in the workshop and that he had sent him back to his employer.  He received a further warning for this conduct.

Mr Caffrey spoke with the country manager, Mr Ed Power, and they both had a telephone conversation with the college instructor, Mr Moran, who explained what had happened that day.  The complainant was asked to attend a meeting at the respondent’s premises in Glenealy the next day.  He attended with a prepared script and admitted that he was engaged in a physical altercation with another student.  He claimed that Mr Moran was “picking on him.”  Mr Caffrey’s evidence is that the complainant was “unapologetic and did not appreciate the seriousness of his actions” and he was dismissed.  This was confirmed in a letter from the country manager, Mr Power, on April 28th 2022.

In his letter, Mr Power informed the complainant that he was entitled to appeal against the termination of his employment and his appeal was heard remotely on May 20th 2022 by the director of sales for Europe, Mr Jari Mennala.  The complainant attended with his father.  The complainant explained his actions on April 25th as “just messing in the workshop” and “harmless antics.”  As part of the appeal, the HR specialist, Ms Laura Chapman conducted interviews with some of the technicians and managers who had worked with the complainant and with an assistant instructor in Solas.  She also reviewed a report from Solas, which showed that, at the end of his phase 2 training, the complainant received an unsatisfactory mark in relation to his application, attendance, behaviour and time-keeping.  On June 10th 2022, Mr Mennala wrote to the complainant and informed him that Mr Power’s decision to dismiss him was upheld.

Opening the case for the respondent, Ms Davey said that the company sells and services forestry machinery.  Technicians and engineers work in a workshop and “in the field.”  In the field, the respondent’s equipment, “forwarders” and harvesters, are used to fell trees, to strip bark and to bring tree poles to the roadside for collection.  The machines weigh up to 15 tonnes and are complex and capable of immeasurable damage.

Ms Davey said that the complainant continuously displayed a failure to take instructions and to adhere to health and safety regulations and procedures.  She said that this conduct persisted in the workshop, in the field and when he was in college.  She said that he was arrogant and immature and that he mistook the kindness of his employer for weakness.  He failed to comprehend the seriousness of his actions and he had no remorse or regret.

Ms Davey said that the complainant was dismissed following the second incident of horseplay in college.  She said that he attended the college as a representative of John Deere Limited and she argued that the decision to dismiss him was reasonable and in proportion to his conduct.

Evidence of the Service Manager, Mr Mark Caffrey

Mr Caffrey said that he has worked for the respondent for 24 years and that he is responsible for after-sales, customer support, vans, the workshop and the engineers.  The workshop contains all the tools to maintain harvesters and forwarders.  They provide new machines, second-hand and refurbished machines and a re-sale service.  Technicians in the workshop carry out axle removals and replacements and engine repairs.  In the field, vans are equipped with air tools, gas and lifting equipment.  Where possible, technicians carry out equipment repairs on site in the forests.  Alternatively, they may lift equipment into the workshop for servicing and repair.

Mr Caffrey said that the company employs around 10 staff and that he was the complainant’s direct manager.  He said that the complainant worked with the company before he started his apprenticeship.  His training was done with an engineer.  He was taught how to check tyre pressure on machines, to check oil levels and to install accessories.  As part of his induction, he did health and safety training.

The complainant was registered with Solas in March 2021.  Mr Caffrey said that, at the beginning, he was keen to learn, but that his attitude changed as time went on and he found it difficult to take direction.  He said that he had a “know it all” approach, he wouldn’t take instruction and he didn’t respond well to criticism.  Mr Caffrey said that was told not to use equipment that he wasn’t trained on and he thought he could do things that he couldn’t do.  He said that other technicians tried to assist the complainant, but he gave them the impression that he knew it all.

By the time for the complainant to start on the college phase of his apprenticeship, Mr Caffrey said that it seemed to him that he had lost interest.  His workmanship was bad, he made repeated mistakes and he wasn’t prepared to listen.  Mr Caffrey said that he began to think that the complainant had made the wrong career choice and he was prepared to let him go towards the end of 2021.  He said however, that when he spoke to Mr Power about dismissing the complainant, Mr Power said that it was too close to Christmas and that he should be given the opportunity to go to college in the new year.

Mr Caffrey said that the complainant began a 10-week college programme in January 2022.  He was paid by Solas during this period, but he remained an employee of John Deere.  Mr Caffrey said that he wasn’t informed about the complainant’s poor attendance record between January and April 2022 and that he was only made aware of this problem on April 25th. 

On that day, Mr Caffrey said that he got a phone call from the complainant’s instructor, Mr Frank Moran who told him that he had expelled him from the college because he had been wrestling with another student on the floor of the workshop.  Mr Caffrey said that he spoke immediately with the country manager, Mr Power and they contacted the complainant and asked him to come to the office the next day at 8.30am.  He arrived at the meeting on April 26th with a prepared note.  Mr Caffrey said that the complainant didn’t accept that the incident in the workshop was serious and that he shrugged it off as harmless and “just messing.”  Mr Caffrey said that he and Mr Power listened to what the complainant had to say, and then they asked him to step out of the office.  He said that he and Mr Power decided that the complainant was a danger to staff and to himself and they decided to let him go.  They called him back into the office and they told the complainant that he was dismissed.  Mr Caffrey said that it was obvious at that point that the complainant was shocked.

Later that day, Mr Caffrey said that he got a phone call from an assistant instructor in the college, Mr Matt Molloy, who claimed that the conduct on April 25th was “only horseplay.”  Mr Caffrey said that he told Mr Molloy that it was unacceptable.

Mr Caffrey said that he was interviewed by Mr Mennala as part of his enquiries related to the complainant’s appeal of the decision to dismiss him.  He said that he told Mr Mennala about two incidents before Christmas 2021.  As part of his training, Mr Caffrey said that he sent the complainant to work with a technician.  The technician reported that the complainant had no interest in the work and he asked Mr Caffrey not to send him out with him again.  Another technician reported that the complainant spent all his time on his phone and he also reported that he had no interest in working.  A member of staff in the workshop reported that the complainant was taking parts without booking them out and that he removed clothing from the store.  When challenged about his by the staff member, the complainant replied that he was entitled to the clothes.

Mr Caffrey said that the complainant was instructed on numerous occasions not to use a forklift truck until he had been trained, but he disobeyed this order.  When the training was taking place, he had no interest and was on his phone.  On two occasions, Mr Caffrey said that he observed the complainant driving out of the yard at speed.  When he phoned the complainant to ask him where he was going, he said that he had an appointment.

Mr Caffrey said that he never came across the behaviour that he witnessed from the complainant and that he is satisfied that the decision to dismiss him was the correct one.

Cross-examining of Mr Caffrey by Mr McCormick

In response to a question from Mr McCormick, Mr Caffrey said that he didn’t “have it in for” the complainant but that, by April 2022, he was at the end of his tether.  Mr McCormick said that the complainant was more experienced than the other staff, having worked on his grandfather’s farm.  Mr Caffrey disagreed and said that forestry is different from farming and forestry machines are highly dangerous.

Mr Caffrey said that he didn’t advise the complainant of his right to be represented at the meeting on April 26th.  He said that he reached the decision to dismiss him when he heard the complainant’s explanation about what had happened in the college workshop the previous day.  Mr Caffrey said that he didn’t look for CCTV footage of the incident and that he accepted the instructor’s explanation of what happened.  Mr Caffrey said that he wasn’t informed about a previous incident of horseplay and that Mr Moran explained that this was because the college was short-staffed during the Covid-19 restrictions.  Mr Caffrey said that he would have expected the complainant to tell him about the previous incident.

Mr McCormick put it to Mr Caffrey that the complainant was not expelled from the college, but that he was asked to go back to his employer.  Mr Caffrey said that he understood that he was expelled.

Mr Caffrey said that he didn’t think that any further investigation was required.  The complainant was found to be behaving immaturely on two occasions.  Mr Caffrey said that, in his view, this is gross misconduct and dangerous in the environment in which they work.

Evidence of the Country Manager, Mr Edward Power

Mr Power said that he has been with the company for 33 years.  He said that he is responsible for sales and marketing in Ireland and that he is not involved in the workshop.  Before Christmas 2021, Mr Power said that he heard that the complainant’s attitude to being corrected wasn’t good.  He said that Mr Caffrey came to him numerous times about his conduct.  He told him that the complainant was out with a field service engineer and that he didn’t show any interest in the job.  The engineers were frustrated with him and Mr Power said that he was concerned that he didn’t seem to listen.  Mr Power said that an engineer was on a job with the complainant and they had to start on a job at 6.00am.  The complainant refused to start early and the engineer left the hotel where they were staying without him.

Mr Power said that Mr Caffrey came to him on an ongoing basis with reports about the bad behaviour of the complainant.  Close to Christmas 2021, he said that Mr Caffrey told him that he felt that “Adam wasn’t going to work out.”  Mr Power said that he should go to college to see if he would mature.  He said that he felt that it was too close to Christmas to let him go.

Mr Power referred to notes from his work diary on June 14th and 21st and July 12th 2021 which were included in the respondent’s book of documents.  The notes record “endless instructions on greasing” and an issue with a fuel hose left running and diesel pouring out onto the workshop floor.  Mr Power said that he sat with the complainant and discussed this “huge safety issue” but that his concerns didn’t sink in.  On July 12th, Mr Power said that he and Mr Caffrey had a meeting with the complainant about what he described as “some quite serious points.”  The complainant had been driving a fork truck when he wasn’t qualified.  He had over-filled a gear box with engine oil, wasting up to four litres of oil. 

When Mr Caffrey took the phone call from Frank Moran on April 25th 2022, Mr Power said that this was the first time that they became aware that there had been problems with the complainant’s conduct in college.  He said that the complainant never informed him about three disciplinary infringements he had been issued with, two of which were related to his absences.  Mr Power said that the company never had a problem with apprentices before and he was very disappointed that the complainant didn’t tell him about his absences from his college course.

On the telephone with Mr Moran on April 25th 2022, Mr Power said that Mr Moran told him that the incident that day wasn’t the first.  Mr Moran told him that the reports about the incidents weren’t sent to the employer because staff were absent due to Covid-19. 

Asked by Ms Davey what he understood by Mr Moran telling the complainant to pack his bags and go back to his employer, Mr Power said that he understood that he was “fired” from his college course.  When he phoned the complainant to tell him that he and Mr Caffrey wanted to meet him the next day, Mr Power said that the complainant said that Mr Moran was “out to get him” and that he spoke to someone in the college and that the situation was “all sorted.”

At the meeting on April 26th 2022, Mr Power said that the complainant arrived with a written note.  He had clearly prepared for the meeting and he gave his version of events the previous day.  Mr Power said that they discussed a previous incident of horseplay and the incident that occurred on April 25th.  Mr Power said the complainant owned up and admitted that he initiated the horseplay.  He followed up by saying that it wasn’t serious and that it was “no big deal” and that Mr Moran had it in for him.  Mr Power said that he didn’t seem to take the incident seriously.  The more the conversation went on, the clearer it became that the complainant didn’t see the seriousness of his actions. 

Mr Power said that he and Mr Caffrey asked the complainant to leave the meeting room.  He said that they re-capped on what had gone before and their history of incidents with the complainant.  The considered the reports they had from other staff about his conduct.  They considered his failure to take instructions, the same conduct he was now demonstrating in college.  Mr Power said that they decided that the company couldn’t risk someone being hurt.

Mr Power said that they brought the complainant back into the meeting room and told him that they wouldn’t be continuing his apprenticeship and they were letting him go.  After the meeting, Mr Power said that he phoned Frank Moran in Solas and told him that the complainant had been dismissed.  A letter to this effect was sent to the complainant by registered post on April 28th 2022.

Mr Power referred to the complainant’s letter of appeal dated May 4th 2022.  He said that he told the manager hearing the appeal, Mr Jari Mennala, what he has set out in his evidence today.  Mr Power said that in his 33 years of working with the company, he never experienced this type of behaviour.  He said “we never had so many problems” with an employee.  He said that if he was in the same situation again today, he would make the same decision.

Cross-examining of Mr Power by Mr McCormick

Mr Power said that the complainant was dismissed for failing to listen to information that could have resulted in an improvement in his behaviour and for failing to improve.

Asked by Mc McCormick if the complainant received any prior warnings, Mr Power said that he always spoke directly to the complainant in private meetings. He gave him feedback and provided him with a chance to improve.  He didn’t give him any warnings in writing.  Mr Power said that he wouldn’t accept that the complainant didn’t know that his behaviour could lead to his dismissal.  Mr Power said that he got “plenty of warnings.”

Mr Power did not agree that the complainant had a good relationship with other employees. 

Mr McCormick referred to Mr Power’s evidence that he considered letting the complainant go before Christmas 2021.  He suggested that the was “delighted with an excuse” presented by the incident in the college on April 25th.  Mr Power disagreed and said that he wanted the complainant to succeed.

Mr Power agreed that the complainant was dismissed after a meeting at which he wasn’t invited to bring someone and that he got no notice and no warning that he was likely to be dismissed.  Mr Power agreed that the meeting at which the complainant was dismissed wasn’t a long meeting, but that he and Mr Caffrey had discussed the situation at length the evening before.  He said that they also took a break after they listened to what the complainant had to say and that they considered what to do.  Mr Power said that the college incident was part of overall conduct that he had witnessed that “brought us to where we were.”

Mr Power accepted that the complainant got no written warnings, but he said that he sat with him on many occasions and Mr Caffrey also spoke to him and tried to give him guidance.

Referring to the incident on April 25th, Mr McCormick suggested that it’s not serious for people in their early 20s to “jostle around.”  Mr Power disagreed and said that the conduct had to be taken seriously.

Re-direction of Mr Power by Ms Davey

In response to a question from Ms Davey, Mr Power said that the complainant was warned five or six times that he would be dismissed if his conduct didn’t improve.  He said that there was no catalyst for his dismissal, but that the incident in the college on April 25th was part of an accumulation of behaviour that they could see wasn’t going to change.  Mr Power said that they felt that his conduct would lead to an injury and that the knock-on effect of damage and costs would have been horrendous.

Ms Davey referred to Mr McCormick’s assertion that horseplay is a simply a feature of youthfulness.  Mr Power replied that there is no room for horseplay in the workplace.

In response to a question from me, regarding any consideration of the disciplinary procedure, Mr Power said that the severity of the complainant’s behaviour was above the procedure.

Evidence of the Head of HR, Ms Christina Drage

Ms Davey referred to the fact that the complainant wrote to Ms Drage on May 4th 2022, seeking to appeal the decision to dismiss him.  Ms Davey referred to the complainant’s description of the cause of his dismissal as “a minor piece of horseplay.”  She said that the company did not regard the conduct as minor horseplay.  Ms Drage said that Mr Jari Mennala, the director of sales and marketing for Europe, was assigned to hear the complainant’s appeal.

Ms Davey read the record of a telephone conversation between Mr Frank Moran and Ms Drage.  Ms Drage said that she phoned Mr Moran because the HR specialist, Ms Chapman wasn’t available to make the call.  Ms Drage said that her understanding is that Mr Moran sent the complainant back to his employer so that his employer could decide what to do.

Mr McCormick asked Ms Drage a few brief questions which confirmed her understanding of the reason for the complainant’s appeal.

Evidence of the HR Specialist, Ms Laura Chapman

Ms Davey asked Ms Chapman about her assistance to Mr Power arising from the complainant’s father presenting at the workplace on April 27th, the day after the dismissal.  Ms Chapman wrote to Mr Cowman to ask him not to attend at the workplace again.

In relation to the hearing of the complainant’s appeal against his dismissal, Ms Chapman said that her role was to support Mr Mennala.  She said that she contacted Solas in Baldoyle and asked about CCTV footage of the incident on April 25th and the previous incident on March 7th.  Ms Chapman said that she was informed that there was no video record of either incident.

Ms Chapman interviewed some of the employees who had worked with the complainant.  She said that her impression was that they tried to train him but that he was constantly on his phone.  He didn’t listen to them and he didn’t accept instructions.  Ms Chapman said that the employees she interviewed didn’t want to work with the complainant.

Ms Chapman said that the company had never had an experience such as this with an apprentice.  She said that after the complainant was dismissed, they contacted Forestry Ireland who recommended an employment law specialist and that she and Ms Drage, Mr Caffrey and Mr Power were trained to manage disciplinary and grievance situations.  She said that she and Ms Drage now have monthly meetings with Mr Caffrey and Mr Power.

Cross-examining of Ms Chapman by Mr McCormick

Ms Chapman agreed with Mr McCormick that she supported Mr Mennala during the process of the complainant’s appeal.  Mr McCormick suggested to Ms Chapman that the training that she and the management engaged in was in effect, a shutting of the door after the horse had bolted.  Ms Chapman replied that they supported Mr Power’s decision to dismiss the complainant, but that they wanted to follow a process going forward.

Ms Chapman said that there are verbal warnings noted in Mr Power’s work diary before the end of 2021.  She said that these were identified during the appeal.  Mr McCormick referred to the disciplinary procedure in the complainant’s contract of employment which provides that no disciplinary action will be taken until the issue of concern is fully investigated.  Ms Chapman replied that this does not apply to gross misconduct.

Mr McCormick referred to the provision in the procedure that, at all stages, an employee will be given an opportunity to state their case and will be permitted to be accompanied by a colleague.

Ms Chapman said that she believes that there should have been “something in writing” before the complainant was dismissed, but he was given verbal warnings and he was issued with warnings by the college also.

Evidence of the Manager who Heard the Appeal, Mr Jari Mennala

Mr Mennala said that he is the director of sales and marketing for Europe and Mr Power’s line manager.  He has been in his role for four years and he has been working with the company for 25 years.

Mr Mennala said that he had a meeting with Mr Caffrey over Microsoft Teams on May 16th 2022.  He said that Mr Caffrey explained his history with the complainant.  He said that he also told him about what happened in the college and how disappointed he was.  He said that the college incident was the “final straw” for Mr Caffrey.

Mr Mennala said that he heard from Mr Caffrey how he tried to give him guidance and how the complainant didn’t listen.  He said that Mr Caffrey described the complainant as a “know it all.”  He referred to several incidents of negligence at work, and how he was sent out to assist mechanics and that this didn’t work out.  Mr Mennala said that Mr Caffrey then sent the complainant to work a man nearer to him in age than some others, but the outcome was still not good.  He said that the complainant was described by employees as arrogant.  They complained that he was constantly on his phone and that he didn’t put any effort into his work.

In relation to the incident in the college, Mr Caffrey told Mr Mennala that the complainant didn’t comprehend the seriousness of his behaviour and he gave the impression that everyone else was lying.

Mr Caffrey told Mr Mennala that he decided that the complainant should be dismissed for an accumulation of performance issues and that the final straw was the incident in the college.

Ms Davey asked Mr Mennala about his meeting with Mr Power over MS Teams on May 17th 2022.  Mr Mennala said that his purpose was to understand what went on at the disciplinary meeting on April 26th and to consider if dismissal was the right thing to do.  Mr Mennala said that Mr Power told him the same story as Mr Caffrey about the complainant’s conduct in 2021 and how the incident in the college was the final straw.  He said that he heard from Mr Power how, before Christmas 2021, the complainant wasn’t willing to learn and how he was defensive, stubborn, arrogant and that he didn’t take feedback.

Ms Davey asked Mr Mennala about his meeting with the complainant on May 20th 2022.  Mr Mennala said that the complainant attended with his father and that he and Ms Chapman informed him that his father wasn’t an appropriate representative.  Mr Mennala said that he understands that Mr Cowman left the room, but then the complainant moved to a different room because of connection issues and he thinks that Mr Cowman may have been present at the meeting.

Mr Mennala said that the complainant described his understanding of the meeting with Mr Caffrey and Mr Power on April 26th as “a small chat.”  The note of the meeting shows that the complainant referred to the incident as “harmless antics,” remarking that, “acceptable or not, it happens.”  Mr Mennala said that the complainant accepted that he was the instigator of the horseplay, but that he completely dismissed the seriousness of the issue.

Mr Mennala said that when he asked the complainant about his training, he recalled the fork truck training and he said he was “shown by others a few things.”  He referred to the disciplinary warnings he received from the college regarding his absences.

Ms Davey referred to the fact that the complainant was absent from college on 12 days, none of which are supported by a medical certificate.

Ms Davey referred to the Apprenticeship Code of Practice for Employers and Apprentices.  A copy of this document was included in the respondent’s booklet for the hearing.  Paragraph 7 of the Code provides that apprentices remain employed by their employer for the duration of the apprenticeship.  She referred to paragraph (i) under the heading, “Apprentice Obligations.”  This provides that an apprentice must,

“…behave in a responsible and mature manner while in employment and during off-the-job training in ETB Training Centres…”

She referred to paragraph (l) which provides that apprentices must,

“Perform all tasks with due care and diligence and observe all safety regulations during both on-the-job and off-the-job elements of the Apprenticeship Programme.”

Finally, under the heading of this Code of Practice, Ms Davey referred to paragraph (o) which states as follows:

“Be aware that off-the-job elements of the apprenticeship do not alter an apprentice’s status as an employee of their employer, nor does it imply a contract of employment between SOLAS and/or the provider and the apprentice.  Apprentices remain in the employment of the employer at all times during the apprenticeship.”

Mr Mennala said that a physical altercation in the workplace is not acceptable.  He said that “luckily, no one got hurt.”

Ms Davey referred to the complainant’s assertion at the conclusion of the appeal that, “John Deere is in the wrong. Regardless of what I did.”  Mr Mennala said that this describes the complainant’s attitude.  He said he gives the impression that everything is someone else’s fault. 

Referring to the assessment of the complainant’s performance at phase 2 of his college course which was stated to be “unsatisfactory,” Mr Mennala said that this mirrors what he heard from Mr Caffrey and Mr Power.  He said that if the complainant was open to paying attention, he would do well.  He said that he lacked maturity to apply his skills.

Mr Mennala said that his decision is “a compilation of the whole story.”  He said that if he had heard from anyone that the decision to dismiss the complainant wasn’t the right decision, he would have addressed that.  In the end, the outcome was that he confirmed that the decision to dismiss the complainant was correct.

Mr Mennala said that in his 25 years of working in the business, across five countries, he has never dismissed an apprentice.  He said that there is a shortage of mechanics and that the company needs to attract learners to stay with them. 

Summarising his reason for not overturning the decision to dismiss the complainant, Mr Mennala said that there were three elements:

1.      The fact that the complainant removed parts and clothing from the workshop;

2.      His reckless behaviour in the workplace and particularly, leaving the diesel pump running into the fork truck and allowing the fuel to spill out onto the floor;

3.      Not obeying instructions, driving a fork truck before he was qualified.

Mr Mennala said that his prime concern was the complainant’s failure to have regard for the fact that the company deals with complex, heavy equipment, and his failure to adhere to procedures regarding safety.

Cross-examining of Mr Mennala by Mr McCormick

Mr McCormick asked Mr Mennala how he came to his assessment of the complainant as dishonest.  Mr Mennala replied that the complainant removed clothing and parts from workshop store and that his version of what occurred contradicted everyone else’s.  Mr Mennala accepted that the complainant was entitled to present his side of the story, but he said that he expected to hear the truth.

Mr McCormick said that, in relation to the incident in the college on April 25th 2021, the complainant explained that he was messing with a friend.  The complainant said that this was a minor incident, but Mr Mennala didn’t agree.  Mr Mennala said that he absolutely didn’t agree.

Mr McCormick referred to the note of the telephone conversation between Ms Chapman and the assistant college tutor who described the incident as “a massive fuss about nothing.”  Mr Mennala replied that this tutor also said that he saw “the tail end” of what occurred.  He said that Mr Moran was in a better position to assess what actually happened.

Mr McCormick suggested that what occurred between the complainant and his friend was “messing” and not aggression.  Mr Mennala replied that it could be considered in many ways.  He said that two grown-ups wrestling on the floor is more than friendly antics.

In response to questions from Mr Mennala about the complainant’s status after he was sent home from the college on April 25th, Mr Mennala said that he was sent home that day, but he returned and finished the course.

Mr McCormick referred to the respondent’s decision not to permit the complainant’s father to accompany him at the appeal meeting.  Mr Mennala said that he could have asked Mr McCormick to attend or he could have brought a colleague.  

Mr McCormick referred to the report from Solas regarding phase 2 of the complainant’s apprenticeship course.  The report is titled “Exceptional” and includes an explanation that this category of report is issued to employers “when specific items relating to their apprentice’s Phase 2 training need to be brought to their attention.”  The report shows that the complainant was considered to be “very good” at practical and theory work, but that he was “unsatisfactory” in relation to his application, attendance, behaviour and time-keeping.  Mr Mennala said that he had a copy of this report at the appeal meeting on June 10th.  He said that, before he reached a conclusion regarding the complainant’s appeal, he considered this report and he considered the statement of the assistant instructor, Mr Molloy and the report of Mr Moran.

Re-direction by Ms Davey

Ms Davey referred to the reports from Solas that were included in the respondent’s documents for the hearing.  She asked Mr Mennala if he reviewed these.  Mr Mennala said that he noted that, on March 7th 2022, the complainant was issued with a written warning for “treating the workshop as a playground.”  On March 11th 2022, he received what the college referred to as an “infringement” due to being absent on six Fridays out of seven.  On March 14th, he was issued with a verbal warning over his absences.  He signed the copies of the verbal warnings. On April 25th, he was issued with a verbal warning and instructed to “leave the workshop and return to his employer.”

Ms Davey asked Mr Mennala to address the negative impact of the dismissal on the complainant.  Mr Mennala replied that the starting point of the company is to try to attract apprentices.  He said that it is difficult to recruit apprentices, because of the complexity of the work, the physicality of the job and the requirement to be out in all weathers.  He said that it is a demanding role.

On behalf of the complainant, Mr McCormick provided a written submission in advance of the first day of the hearing on July 5th 2023.  The submission is divided into two parts, comprising a background statement and a legal submission.

Summary of the Complainant’s Background Statement

Having commenced working with the respondent on March 15th 2021, in his statement, the complainant said that he started phase 2 of his Construction Plant Fitting course in the Solas training centre in Baldoyle on January 4th 2022.  He named the two course instructors as Frank Moran and Matt Molloy and he said that most of the time he was in the workshop, but that he also spent time in a classroom setting.

On April 25th 2022, the complainant said that he was in the classroom and that he had finished an assignment when eh was “messing about with my good mate.”  He said that Mr Moran entered the room and saw him and his friend on the floor.  He said that he was told to “take my stuff and leave.”  The complainant said that Mr Moran did the same in similar circumstances with other students before Christmas.  He said that his friend was not reprimanded in the same way.

On his way home from Baldoyle, the complainant said that the respondent’s country manager, Mr Power phoned him and told him that Mr Moran had been in touch.  He said that Mr Power asked him to meet him the following morning for “a small chat.”  The following morning, the complainant said that he went to a meeting with Mr Power and the service manager, Mr Caffrey.  He said that he was let go and his apprenticeship was suspended.

The complainant said that he appealed the decision to dismiss him and that he attended a virtual meeting with Mr Mennala on May 20th.  On June 10th, he was told that his dismissal “still stood.”

The complainant said that he wanted it noted that he was not dismissed from his training course, and that he completed the course with very satisfactory results.

On May 23rd 2023, the complainant said that he started in a new company where he was able to complete his apprenticeship and that he is still working in that company.  He said that his new job entails a round trip of 140km and involves significant travel time and cost.

Legal Submission

The complainant asserts that, before the meeting he attended with Mr Power and Mr Caffrey on April 26th 2022, he was given no warning that this was a disciplinary or a dismissal meeting.  He said that he wasn’t offered the opportunity to have somebody with him and he had no details of the conversation between Mr Power and Mr Moran the previous day.  He was not given an opportunity to question Mr Moran’s view of the incident.  The complainant said that he has since read Mr Moran’s statements and that they “seem to be much less dramatic than what I was led to believe.”

The complainant accepted that he was issued with a verbal warning on March 11th 2022 for childish behaviour.  He said however, that his conversation with Mr Power suggests that he should have been issued with a verbal warning by his employer.  The complainant also referred to the notes of Ms Chapman’s meeting with Mr Molloy who regarded the conduct on April 25th as “a minor incident.”

The complainant claims that his dismissal was unfair for the following reasons:

§  The dismissal meeting took place with no warning in advance of the consequences and he was not given an opportunity to be accompanied.  The complainant argued that this is contrary to fair procedures.

§  He claims that the dismissal decision appears to have been made in advance of the meeting.

§  He complains that he wasn’t given an opportunity to challenge Mr Moran’s version of what occurred as he described it to Mr Power.

§  He said that no one saw any CCTV footage.

§  He said that the decision to dismiss him and to terminate his apprenticeship was “disproportionate to my actions and is a permanent stain on my CV and character.”

Setting out the complainant’s case, Mr McCormick said that the incident that took place in the college workshop was not a health and safety issue.  He said that the incident was one of pushing and shoving and horseplay between two good mates.  Mr McCormick said that if the conduct was serious, that the complainant should have been suspended and that he should have been allowed to question witnesses.

Mr McCormick did not ask the complainant to give evidence.

For the respondent, Ms Davey referred to s.6(4)(b) of the Unfair Dismissals Act 1977 and the provision that an employer may dismiss an employee for reasons related to their conduct.  She referred also to s.6(7) and the onus on me, as the adjudicator in this matter, to consider the “reasonableness or otherwise of the conduct of the employer in relation to the dismissal.”  Ms Davey submitted that, due to the conduct of the complainant at work and in college, the respondent acted reasonably in dismissing him.

Ms Davey asked me to have regard to paragraph 16.59 of the publication, “Redmond on Dismissal Law,” by Dr Desmond Ryan[1], where Mr Redmond referred to the determination of the former Employment Appeals Tribunal in the case of Creed v KMP Co-op Society Limited[2].  Mr Creed had been engaged in horseplay in the abattoir where he worked.  The EAT considered the fact that he was employed in a place where the employees used knives the environment that was not conducive to horseplay.  The dismissal was found to be not unfair.

Ms Davey submitted that the complainant’s conduct falls within the realm of behaviour that cannot be tolerated for a moment longer, as outlined in the seminal decision of the EAT in the case of Lennon v Bredin[3]:

“We have always held that this…applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category.”

Ms Davey submitted that the act of gross misconduct that occurred on April 25th 2022 was the culmination of previous behaviour which could not be tolerated for a minute longer.  This physical force conduct in the workshop mirrored the complainant’s previous behaviour, where he failed to consider the fact that he was employed in a safety-critical working environment.

Considering the reasonableness of the employer’s conduct, Ms Davey said that the complainant was issued with a contract of employment, he received training and he had multiple opportunities to learn, working alongside management and his colleagues.  Mr Caffrey and Mr Power said in their evidence that they sat with the complainant numerous times, to give him guidance and to mentor him to do the right thing at work.

Ms Davey referred to the incident with the over-flow fuelling of the fork truck, the complainant repeatedly driving the fork truck before he was trained and taking clothes from the store without permission.  She described the complainant as immature and somewhat naïve.

Ms Davey acknowledged that the onus of proof is on the respondent to show that the dismissal was not unfair.  Arguing that the dismissal of the complainant without notice was not unreasonable, Ms Davey said that the complainant was found to be physically pushing another student.  He lied to Mr Caffrey regarding previous warnings in the college and he provided no medical certificates to support his absences.  She said that he was “the author of his own misfortune” and that the trust that his employer must have in him was destroyed.

Ms Davey noted that the complainant suffered no loss of earnings as a result of his dismissal.  He continued in his apprenticeship programme, for which he was paid an apprenticeship rate and he commenced with a new employer four weeks after he was dismissed by the respondent.  In his submission to the WRC, the complainant said that he is seeking an apology from the respondent.  Ms Davey noted that he has never apologised to Mr Power or Mr Caffrey for bringing the reputation of the company into disrepute.  

For the complainant, Mr McCormick noted that Mr Moran did not attend as a witness for the respondent.  I understand that, on the day when evidence was given at the hearing, Mr Moran was on jury duty.

Mr McCormick said that he has no issue with how the respondent conducted the appeal hearing, apart from their decision not to allow the complainant’s father to represent him.  He said however that, in his view, the appeal resulted in information being “dug up to discredit him.”

Mr McCormick criticised the speed of the decision to dismiss the complainant, following as it did on the day after the incident in the workshop.  He said that a fairer procedure would have been to suspend him until a proper investigation had been carried out.  Mr McCormick suggested that, as Mr Power had considered dismissing the complainant before Christmas, on April 26 2022, he was looking for an excuse to do so.

Concluding his submission, Mr McCormick said that the complainant is not seeking compensation, but that, if I find in his favour, I should award him pay in lieu of notice.

The Legal Framework

The basis of our approach to dismissal is at s.6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) which provides that:

“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.”

Section 6(4)(b) of the Act provides that,

“…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 …the conduct of the employee.”

From this, we understand that the burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  In the letter of dismissal dated April 28th 2022, the respondent’s country manager, Mr Power explained the reason why he was dismissed:

“Since the start of your employment and apprenticeship with us Mark and I had conversations with you, and we raised our concerns around your conduct and your negative attitude towards taking and carrying out instructions.

At this meeting, it was decided that your conduct was still unsatisfactory and that you will be dismissed from your position.  The college informed us of issuing you with a disciplinary action in February 2022 and another bad behaviour issue in April 2022.  The reason for your dismissal is that we see no improvement in your conduct and your behaviour in college is totally unacceptable.”

It is apparent from this that the complainant was dismissed not just because of his horseplay with a student in the college workshop on April 25th 2022, but because of his conduct when he was at work, his negative attitude to his managers and colleagues and his inability to listen and take instructions.  In my determination on the question of the fairness or otherwise of the respondent’s actions, I must consider the reasonableness of their decision to dismiss him and the procedure that ended with the termination of his employment.

Was it Reasonable to Dismiss the Complainant?

There are many precedents where the issue of the reasonableness of an employer’s decision to dismiss an employee have been examined.  In 2009, when he was found to have distributed inappropriate emails to colleagues, James Reilly was dismissed from his job as a sales manager with Bank of Ireland[4].  In an appeal to the High Court, Mr Justice Noonan observed that:

“An assessment of the reasonableness and proportionality of the employer’s response must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee.” 

In the case of Pacelli v Irish Distillers Limited[5], the task of the EAT, and now my task, is to consider if the respondent’s decision to dismiss the complainant was consistent with what “a reasonable, prudent and wise employer would have done having regard to the nature of the case.”

The complainant’s contract of employment shows that he was subject to probation for six months and that his conduct and performance would be monitored during that period to assess if he was suitable for the job.  His circumstances were complicated by the fact that, having commenced in the workplace in March 2021, he started phase 1 of his college training the following month, so he was out of the workplace for a significant part of his probation.  Nevertheless, the respondent has a comprehensive disciplinary procedure and, with some assistance from the HR department, the managers onsite in Glenealy, could have dealt with the complainant’s conduct sooner than they did.  I accept that the managers, Mr Power and Mr Caffrey, in their many years of experience, never came across behaviour like the complainant’s.  It seems to me that most young people who have an interest in heavy machines would appreciate an opportunity to train with a company such as John Deere and I have no doubt that the managers had never before encountered an employee with such a dismissive and disrespectful attitude.  I observed this attitude at the remote hearing, when I noticed that the complainant was smirking when his former managers were giving their evidence.

Mr Caffrey said that he considered dismissing the complainant before Christmas 2021, but that Mr Power wanted to give him another chance and to let him go on to phase 2 of his training.  It was apparent therefore, that the managers had cause to invoke the disciplinary procedure on several occasions before the complainant started phase 2 of his college training in January 2022.  The reasons that emerged in the evidence were:

1.      The complainant’s colleagues reported that he was constantly on his mobile phone while he was meant to be working;

2.      He drove the fork truck before he was trained to do so, despite being instructed several times not to do so;

3.      At the fork truck training, he was on his mobile phone;

4.      He removed parts and clothing from the stores without permission;

5.      He left diesel running into the tank of a fork truck and walked away;

6.      He drove at speed from the yard when he was leaving the workplace without permission;

7.      He didn’t listen to instructions and when he was out in the field with his colleagues and he showed no interest in learning from them.

Despite the complainant’s demeanour at the hearing, and his failure to give evidence to support his contention that his dismissal was unfair, a reasonable approach requires me to have regard to the possibility that an earlier disciplinary intervention may have had the effect of changing his behaviour and improving his performance.  I accept entirely the evidence of the two managers that they sat down with the complainant on several occasions and spoke to him about his conduct, his failure to act with care and the risks he took with his safety and the safety of his colleagues.  I note also that he was issued with verbal warnings by his college supervisor, although these were not communicated to the employer.  As a young person who was perhaps over-confident and naïve, a written warning or even a final written warning before the start of his second phase in college may have helped him to see sense.

Considering the remarks of Mr Noonan in the James Reillyand Bank of Ireland case to which I have referred and, having regard to all the circumstances, including the impact on the employee and the employer, it is my view that, in April 2022, it was reasonable to dismiss the complainant, but that his dismissal may have been avoided if the managers had invoked the disciplinary procedure at an earlier stage.

Was the Procedure Fair?

There was no dispute at the hearing that the managers who dismissed the complainant did not follow the company’s disciplinary procedure.  It is my view that this failing was remedied to a significant degree during the appeal process, when the respondent’s managers went to considerable effort to investigate the circumstances that led to the complainant’s dismissal.  In this regard however, I must accept Mr McCormick’s argument that “the horse had bolted” at that stage and, to some degree, the appeal may have been an attempt to re-construct a disciplinary investigation. procedure.

Conclusion

Having considered the written submissions and the evidence of the witnesses for the respondent, I have reached the conclusion that it was unreasonable for the managers to dismiss the complainant without first applying the early stages of the disciplinary procedure to see if that course of action might result in a change in his behaviour.  I find also that the procedure that ultimately ended with his dismissal on April 26th 2022 was not in line with the respondent’s own disciplinary procedure and was unfair.

I decide that the dismissal of the complainant was unfair and that his complaint is well founded.  With regard to redress, I was I informed at the hearing that he continued his college course and that he commenced in a new job on May 23rd 2022 and that he suffered no loss of earnings.  In accordance with s.7(1)(c)(ii) of the Unfair Dismissals Act, in circumstances where no financial loss arises following a dismissal, I have authority to make an award of up to four weeks’ pay, “as is just and equitable having regard to all the circumstances.”  In the circumstances, I make no award of redress.

Conduct, disciplinary procedure, nil award