FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : MORBURY LIMITED T/A TOP SECURITY (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LTD) - AND - ARTUR JABLONSKI (REPRESENTED BY DENIS COLLINS B.L., INSTRUCTED BY JOYCE & CO SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of an Adjudication Officer's Decision ADJ-00003427.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer ADJ-00003427 to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Act, 1977 to 2015 on the 3rd May, 2017. A Labour Court hearing took place on the 8th February, 2018. The following is the Determination of the Court:
DETERMINATION:
Morbury Limited t/a Top Security (the Respondent) provides security services on a contract basis to clients throughout the country. It employed Mr Artur Jablonski as a Security Guard in 2006. Mr Jablonski performed very well in that role and he was subsequently promoted to a Supervisor position within the respondent company.
Arising out of an incident that occurred around Christmas time in 2014 the respondent terminated his employment by way of dismissal on 15 January 2016.
The Complainant referred a complaint of unfair dismissal under section 8 of the Unfair Dismissals Act to the Workplace Relations Commission on 31 May 2016. The adjudication Officer having inquired into the dispute and having given both parties an opportunity to present evidence in support of their respective positions at a hearing on 15 December 2016 decided as follows:
- “As I have concluded that the complainant has been unfairly dismissed and mindful of the complainants’ contribution to his dismissal, I find that compensation is the only practical option of redress open to me under Section 7 of the Act.
I have considered the evidence adduced on mitigation and loss. Based on the complainants’ stated current work profile submitted at the hearing. I hereby order the respondent to pay the complainant €10,000 in compensation for the Unfair Dismissal. “
- “As I have concluded that the complainant has been unfairly dismissed and mindful of the complainants’ contribution to his dismissal, I find that compensation is the only practical option of redress open to me under Section 7 of the Act.
The Respondent appealed against that decision to this Court on 3 May 2017. The case came on for hearing before the Court on 8 February 2018.
Background
In September 2015, the complainant submitted a holiday request form to Mr DOL (Operational Manager). He requested annual leave over the Christmas and New Year period.
There is some dispute between the parties as to the precise response that Mr DOL gave to the Complainant when he presented him with the form. Mr DOL states that he expressly told the Complainant that the leave had not been granted as he would have to wait until he knew the staffing requirements for the period and whether or not staff could be released and he told the Complainant that he (the Complainant) would have to get back to him (Mr DOL) nearer the time to see if could have the time off while the Complainant states that he told him he would see what he could do and that they would talk closer to the date.
There was no further interaction on the matter between the parties in the intervening period.
In November 2015, Mr DOL circulated a Memo to all Full Time Security Officers inviting them to indicate what Public Holidays they sought to be rostered off for over the Christmas and New Year period. This note included a tick box form that set out Christmas Day, St Stephen's Day, New Year's Day as possible options.
The Complainant ticked all three boxes.
On 17 December the Respondent published the work rosters for the Christmas and New Year period.
On December 22, the complainant approached a member of the Office Staff, a Ms A , informing her that there was a problem with the published roster.
The complainant later that day informed Mr DOL that he had already booked his holidays to return to Poland and would not be available to work over Christmas and New Year. He referred to their discussion regarding the matter some months earlier.
Mr DOL advised the complainant that he was rostered to work and that he was needed over the period. He went on to inform him that there would be serious consequences if he did not comply with the work roster. The Complainant’s response was “I will take my chances “He did not present for work over the holiday period.
On December 30, 2015, Mr DOL wrote to the complainant advising him that he was investigation his failure to report for work as rostered over the Christmas. He informed him that he was required to attend at the company office on 5 January 2016 in connection with that investigation.
The Complainant did not receive that correspondence as he had changed address. The Respondent had not been notified of his new address. However, through a co-incidence of timing, he attended at the Company premises on 5 January and met with Mr DOL. He agreed to proceed with the meeting as scheduled. He chose not to seek representation at that meeting.
Mr DOL concluded his investigation into the matter and decided as follows
- “ I have concluded that there is a case to answer to the allegation of failing to attend work for your rostered shifts for the weeks 25 December -31 December and 1stto 7thJanuary ,2016 as per your terms and conditions of employment , item 3 and code of conduct 17.3 items K and M”
On January 12, 2016. Ms OM was appointed to conduct the disciplinary investigation into the matter.
She set out the charges the Complainant was facing and invited his response to those charges. In this regard she relied on the minutes of the meeting of 5 January and the outcome of Mr DOL’s investigation.
Following that meeting Ms OM decided to dismiss the Complainant. The decision was confirmed in writing on 13 January 2016.
The decision to dismiss the complainant was confirmed following an appeal under the terms of the Respondent’s Disciplinary Procedures. That decision was conveyed to the Complainant by letter dated 28 January 2016.
Proceedings before the Labour Court
The fact of dismissal was not in dispute.
Section 6 of the Act states
- 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.
The Substantial Grounds
In her evidence to the Court Ms OM made out the following grounds which she submits constitute substantial grounds for the purposes of discharging the burden placed on it by Section 6(1) of the Act.
1.The complainant has long standing familiarity with the annual leave rules at the company.2.The complainant’s application for annual leave at Christmas was not approved and was indeed returned to him when it was presented to his manager.
3.The Complainant could have had no understanding that he had approval to proceed on the basis that the leave was approved.
4.The Complainant proceeded to act covertly to book flights and to make plans with the intention of taking annual leave at Christmas when he was aware it had not been approved.
5.At no point did he check with the Respondent to confirm that the leave had been granted and that he could continue to make arrangements not to report for work over the Christmas and New Year period.
6.The Respondent formed the view that the Complainant’s covert behaviour undermined the bond of trust that must exist between a worker and an employer.
7.The Respondent submits that a deliberate decision not to report for work without justification or cause is a serious offence that must inevitably raise the prospect of serious consequences for the Complainant.
8.The Respondent submits that as the complainant was employed as a Supervisor his failure to abide by Company Procedures impacted on his capacity to function in that position and maintain supervisory relations with the staff that reported to him.
9.It further submits that it aggravates the Complainant’s decision to refuse to attend for work as rostered.
10.It submits that the Complainant was less than forthright with it when he stated at the investigation that he would have stayed to cover the shifts if he knew the company was in difficulty for cover while at the same time stating that he would “take his chances” when advised that there would be consequences for him if he proceeded to take unapproved leave and fail to fulfill his duties under the roster.
11.The respondent submits that the Complainant’s behaviour comes within the definition of “gross misconduct “contained in S.17.3 of the Company Disciplinary Procedures which in relevant part states
- K: Absence from a location without prior authorisation from control or the duty supervisor.
M: Wilfully failing to carry out your duties as per the site instructions and in accordance with the company’s rules and regulations.
- K: Absence from a location without prior authorisation from control or the duty supervisor.
The Respondent’s Case
The Complainant told the Court that he had a good working relationship with his manager. He submits that the Company normally forbade the taking of holidays at Christmas. This restriction was normally notified to staff by way of a circular letter that was issued each year. However he noted that it had not been issued in 2015 and accordingly he grasped the opportunity to apply for leave to enable him to return home for Christmas for the first time in a decade. He submits that he completed a holiday application form and submitted it to his manager in good time. He submits that his manager, with whom he had a good relationship and who never let him down before, told him he would see what he could do for him and would facilitate him if he could arrange cover for the shifts over the Christmas period. He said that he also winked at him which he understood to be confirmation that the leave would be approved. He said he was aware that organising cover for days on which premium rates of pay applied over the Christmas had never been a problem and he had no reason to believe it would be this year either.
He said that he continued working on that assumption. He said that when the form seeking which holidays he required off over the Christmas period was issued in November he ticked all of the Public Holidays. He said he saw no reason to do otherwise.
He said that when the Rosters for the Christmas period was published on 17 December he noted he was scheduled to work. He said he made efforts to contact his manager but had not succeeded in doing so. He said that he went into the office on the 21stDecember to advise the roster admin staff that he was scheduled off over the Christmas and that alternative arrangements were required. He said that he did not accept that he was avoiding his manager or seeking to avoid his obligations under his contract of employment.
He said that when he engaged with his manager he advised him that he had applied for annual leave in good time and that he was never advised that it had been refused. He said that he had made arrangements to return to his native Country and that he intended proceeding with his plans. He said he told his manager he would face up to the consequences of his decision.
He submits that his actions were reasonable in all of the circumstances of the case. He had applied for leave in good time, had been assured he would be accommodated if the shifts could be covered and acted on the basis that such an assurance amounted to de facto confirmation that he could proceed to plan for the leave. He did so and was belatedly told he could not take the leave. He submits that in such circumstances he had no choice but to continue with his plans.
He submits that he was genuine when he said he would have stayed had it not been possible to cover the shifts but was confident that there would be no problem that year as there had never been a problem having premium shifts covered in the past. He submits that in the event all of the shifts were covered.
Findings of the CourtThe Court finds that the Complainant has a long and exemplary employment history with the Respondent. In 2015 he took the opportunity to apply for leave at Christmas time. He did so and made a formal request to his manager.
There is a dispute as to what transpired between the Complainant and his manager when he presented the leave application form. The Complainant states that it was retained by the Manager and that he was led to believe that the leave would be approved in due course.
The Manager states that he returned the form to the Complainant and denied him leave.
The Court has heard evidence from both the Complainant and the Manager in this regard. The Court has also examined the minutes of the meetings that record the statements made by them both at various stages of the disciplinary investigation into this matter.
The Court finds that Manager’s assertion that he returned the form is not contained in minutes of any of those meetings.
The minutes of the meeting of 5 January 2016 in relevant part state
AJ said that he applied for holidays 2.5 to 3 months ago. He spoke to DOL, who said to leave it with him until closer to the time. AJ said the he then assumed it was approved when he heard nothing else about it and went ahead and booked his flights and arranged meetings with his family in Poland.DOL said that he did have a conversation with AJ some months previous and that he had said very clearly that he would not sanction holidays through Christmas/New Year until such time as he could be sure all rosters were covered and that they would discuss the matter nearer the time.”
Mr DOL told the Court in evidence that he had no subsequent approach from the Complainant regarding the leave request and that this disclosed a secrecy on his part that undermined the bond of trust between them.
The Court finds no evidence for this conclusion. The minutes show that the obligation to cover the roster lay with Mr DOL. They disclose that he undertook to sanction the leave should he be in a position to cover the shifts and they disclose an obligation to discuss the matter with the Complainant “nearer the time”.
The Complainant could not have known what progress Mr Dol was making in arranging to have the shifts covered. That was a matter for Mr DOL and not for the Complainant to follow up. As Mr DOL did not revert to him at any time before the rosters were issued on 17 December the Complainant had no way of knowing whether the shifts were or were not covered. However on the basis that the shifts had always been covered in the past and as the Complainant had been involved in arranging such cover to facilitate other staff it was reasonable of him to conclude that arranging such cover would not pose a problem in 2015.
In that context the Court finds that Mr DOL’s conclusion that the Complainant should face charges of Gross Misconduct was excessive.
Furthermore as Mr DOL was possibly culpable for the misunderstanding and as he had an interest in any investigation into the exchange that took place earlier in the year any recommendation Mr DOL made should have been treated with some hesitation as its objectivity could have been compromised by what would be a natural desire to present himself in the best light he could.
As this exchange is central to any consideration of how reasonably the Complainant reacted to it the Court would expect that Mr DOL would have been interviewed by the decision maker when deciding what version of events she would accept. However the Court was told that Ms MB, the decision maker, did not interview Mr DOL in this regard or at all. However she chose on the basis of the Minutes of the Meeting of the 5 January to accept Mr DOL’s version of events.
The Court can find no justification for such a decision. Ms MB in her evidence to the Court told it that she found that Mr DOL had returned the leave form to the Complainant and that he could have been in no doubt that the request had been refused. However that is not what the minutes disclose, it is not what the Complainant stated to her when she met him and she never tested the Complainant’s version of events with Mr DOL. Indeed she stated in evidence that she never discussed the matter with Mr DOL at any time. And yet she chose to adopt a version of events that are not disclosed in the minutes of the meeting and was never put to her as part of her in the course of her investigation into the matter.
Accordingly the Court must find that Ms MB came to conclusions regarding the Complainant’s behaviour that have no basis in the documents or evidence before her.
The Court further finds that Ms MB could not have fairly concluded that the Complainant’s version of events was without foundation unless she had put them to Mr DOL and tested his version of events that led to his recommendation that the Complainant be charged with having taken actions that amount to gross misconduct. Moreover the Court finds that Ms MB gave no consideration to Mr DOL’s interest in the outcome of his investigation and the possible bias he brought to it where his version of events conflicted with those of the Complainant. The Court finds that such an absence of scrutiny undermines Ms MB’s investigation into this matter.
Therefore the Court finds that Ms MB’s conclusions cannot be upheld as they disclose a lack of scrutiny and objectivity that undermine her investigation and conclusions in their entirety.
The Court therefore finds that the Complainant was not treated fairly, that the disciplinary hearing was not impartial and or sufficiently rigorous and that the conclusions drawn and sanctions imposed by Ms MB cannot stand.
Accordingly the Court finds that the Respondent has failed to meet the statutory burden placed on it to overturn the presumption that the dismissal was unfair.
Remedy
Section 7 of the Act states
- 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following as the case may be, considers appropriate having regard to all the circumstances:
( a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
( b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.]
(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
( a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
( b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,
( c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,
(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) ofsection 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,
(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and
(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.
(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee —
(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or
(b) under the Income Tax Acts arising by reason of the dismissal,
shall be disregarded.
(2B) Where—
(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and
(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,
the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.
(3) In this section—
“ financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;
“ remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.
- 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following as the case may be, considers appropriate having regard to all the circumstances:
Both parties told the Court that they viewed Compensation as the most appropriate form of remedy in this case.
The Complainant told the Court that he was unemployed for some months following his dismissal. He thereafter secured employment at a salary some €8,000 per annum less than that on which he was employed by the Respondent.
Taking these factors into consideration the Court orders the Respondent to pay the Complainant compensation in the sum of €11,500 for the infringement of his rights under the Act.
Determination
The Court determines that the Complaint of unfair dismissal is well founded. The decision of the Adjudication Officer is amended to the extent that the level of compensation awarded is increased from €10,000 to €11,500. The appeal is not allowed. The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
26th April 2018______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.