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ADJ-00021190

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00021190

Parties:

  Complainant Respondent
Anonymised Parties Job Initiative Team Leader/Supervisor A Community Centre

Representatives Deirdre Canty SIPTU Liz Murray A & M Employmentt Consultants

Complaint:

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-00027597-001 08/04/2019

Date of Adjudication Hearing:  26/06/2019

Workplace Relations Commission Adjudication Officer:  Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint / dispute to me by the Director General, I inquired into the complaint / dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint / dispute.

Background:

The Complainant is claiming Unfair Dismissal.

Summary of Complainant’s Case:

The Complainant was employed as a Job Initiative (JI) /Team Leader for 23 years with an unblemished record.On May 26th, 2017 he was told of an Investigation under way and he was to report to a new Line Manager, Ms. RC, on all matters relating to his work and performance. The following day he was called to a meeting with the CEO and Chairman of the Board of Management and suspended to allow an investigation into an alleged behaviour by him the previous day. He was not informed of the details of the investigation. On June 1st he was informed he could return to work. The following day a request was made to the Respondent to set out the details and basis for the Complainants suspension and subsequent return to work without explanation. While the Complainant was out of work the Respondent contacted sub sponsors and arranged to remove duties and responsibilities from the Complainant. Also, that day Ms. RC took away cheque books, annual leave sheets, wage cycles etc from the Complainants office and the Complainant was told he would no longer be carrying out these duties and he was subsequently relocated to another location away from his normal place of work and was told in writing not to visit locations or sub sponsors. In July the Complainant was informed of the allegations which caused his suspension. The Complainant raised a grievance regarding these matters, which was never heard by the Respondent and he was subjected to continued behaviours which were a deliberate target for his dismissal. The Complainant was told attend a meeting in July with several Managers, an external HR Consultant and he felt railroaded into accepting their instructions and had no input to the meeting. In August 2017 the Complainants Union Representative changed and requested details of the outcome of any investigations.  The Union Representative was informed the Complainant would be notified on his return to work from holidays of the outcome of the investigation, this despite the Complainant having never attended an investigation meeting. The notice also contained other previously not discussed issues and the Complainant raised a grievance regarding his concerns and about the behaviour of Ms. RC. The Respondent replied saying the matter had been referred to the top officials of SIPTU. The Complainants Representative got no reply on the investigations or to the Complainants grievances.  The Complainant was informed in writing on October 12th, 2017 that his grievances were dealt with despite this not being the case. The Complainants Representative wrote to the Respondent on October 17th, 2017 requesting details of the outcome of the investigation, disagreeing that the grievance was completed and informing the Respondent that the issue had been submitted to the WRC for adjudication. On October 20th, 2017 the Complainant lodged a formal complaint against the CEO under the Dignity at Work Policy for refusing to deal with the Complainants grievance. The Complainant believed he was still being targeted for dismissal and he also lodged a complaint against Ms. RC. On October 19th the Complainant was again suspended, by email, effective immediately. The Complainant Representative lodged a complaint regarding the suspension and seeking an immediate return to work. An investigation meeting was set up for a few days later and again on Nov 1st. Details were requested for the investigation and an objection lodged to the CEO conducting the investigation. The Complainant was given some details of the complaints and told respond within two days. A request to cross examine witnesses was made and not responded to at all. The Complainant was denied his legal right to fair procedures and natural justice. The Complainant was on sick leave in December, January and February due to stress and when fit to return to work he was not allowed to do so. The Complainant was invited to a disciplinary meeting in February 2018 by the Chairperson, the allegations were not given to him and the Chairpersons correspondence had pre-decided the issue. The Respondent attempted to restrict the Complainants Union Representatives to two specific people. The Complainant returned to sick leave due to the pressures of the situation. In August 2018 he attempted to return to work but was dismissed by the Chairperson on August 21st, 2018. This decision was appealed and the reasons for dismissal were again requested. At the appeal it was confirmed that the decision to dismiss was taken by the Board and not the Chairperson. It was also confirmed that the appeal could only be overturned by the Board and not the people hearing the appeal. This led to the Appeal Hearing not proceeding in a normal or fair way.The Complainant believes that one of the main reasons he was dismissed is for suggesting that the CEO had used trainees employed by the Respondent to do private work at the CEO’s House and for raising a protected disclosure to this effect.

Summary of Respondent’s Case:

The issues which gave rise to a trade dispute ultimately lead to the Complainants dismissal.The Complainants contract allowed for the base location of employment to be altered should the need arise and with adequate notice and consultation.In May 2017 an issue arose between the Complainant and the CEO where the Complainant confronted the CEO and another member of staff in an aggressive and verbally abusive way, when the Complainant sought to involve himself in a routine employment matter that had nothing to do with him but concerned his daughter. The Complainant was invited by the CEO to her office to discuss the matter in private. The Complainant would not accept a letter presented to him by the CEO (basically changing his reporting Manager) and stated he would elevate the issue to Union Head-Office and became irrational and that he would only report to the CEO.The Complainants new Line Manager became very upset and distressed by the Complainants behaviour and the Complainant was suspended with pay to give the organisation time to reflect on whether disciplinary action was warranted in the situation. An Emergency Meeting of the Board took place where it was decided the Complainant could return to work, without sanction, providing he accepted his new management reporting structure and used the grievance procedure in future for any issues and he returned to work on June 1st, 2017. The Complainant met his new Line Manager the following day and advised he was under severe stress due to the situation. On June 2nd SIPTU wrote to the company seeking clarification of why the Complainant had been suspended and the reasons for his return to work. This was responded to by the Chair of the Board on June 7th, stating the Complainant was aware of why he was suspended and inviting him to raise a grievance if he wished to and he choose not to. On June 6th the Complainant was told to confine his visits to JI participants to one day a week and the Complainant took this as a punishment which it was not. The Complainant felt his mileage expenses were being affected and advised he would continue to do his visits as before and advised his Union had advised him to continue with the custom and practice. The Complainant was informed in writing of the sub sponsors lack of need for more than one visit a week. The Complainant refused to obey the instruction or refused to work it under protest.The Complainant was also engaged in a prison visit scheme and was visiting a prison at least once a week, or more, and the Respondent could not get a handle on the frequency of these visits and the Complainant just said it was his civic duty to do them. On the days in question he signed in and then disappeared and absented himself from work. He was paid a stipend of 142 Euro for each visit and mileage by another Public Service.The Complainant continued to frustrate the Respondent by taking sick leave and being in and out of work and continued to claim mileage for unauthorised visits. He stated he was a Volunteer doing the prison visits which was totally incorrect. The Complainant was informed of a move of office and he took on roles that that were not his function.The Complainant had been visiting sub sponsors when he was on sick leave without authorisation.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The Law. “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 a 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 a 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 under statute.
Several judgements were considered by the Adjudicator in arriving at my decision. Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”. Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”. Also, relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”. In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances. The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her” submissions listened to and evaluated”. Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”. This case had a high number of issues between the parties prior to the dismissal on August 21st, 2018. The reason for dismissal, given by the Respondent to the Complainant in the dismissal letter, was “Your actions have frustrated the process and at this stage the bond of trust necessary between an Employer and an Employee has completely broken down and the Company has decided to terminate your employment due to your behaviour.”. During the Hearing the Respondents submission of the “behaviour” mentioned above can be summarised as follows, A.  visiting a prison on at last 12 occasion a year and receiving a stipend and mileage for this action and not informing the Company Management in advance of these visits and also claiming for being at work while on the visits. This “arrangement” that the Complainant entered into of his own accord did not have the approval of management, was in effect double jobbing each time the visits were conducted and the Complainant felt entitled to leave work and not notify anyone of what he was doing. B.   Refusing to stop visiting sub sponsors (and making associated mileage claims) despite being instructed to do so.C. Basically, non-co-operation with management instructions and acting “independently” of the organisation. The Complainant seems to have had the belief he was “protected” from the normal rules of employment and seemed to act as if he was in control of his on schedule, work duties and times.The Complainants Representative put forward several grounds for the dismissal being unfair, chiefly a complaint he made against the CEO for using trainees for doing work on her own house. This issue was not expanded upon at the Hearing, except to state the allegation and it was not substantiated by the Complainant at the Hearing.  Other grounds were that the visits to the Prison were a civic duty, that he had been suspended (with pay) without good cause, that his right to Representation was being restricted and he was not provided with details of an investigations into his actions. The Representative also raised the history of the Complainant being suspended unfairly without reason and that investigations were not conducted properly and fairly. A core ground for claiming the dismissal was unfair is that the allegations against the Complainant were not set out to him in writing in advance of dismissal and that the Appeal Hearing was fundamentally flawed as the people conducting the Hearing were not able to overturn the dismissal decision. Having considered all the issues involved, I have concluded the Respondent had grounds for dismissal in that the Complainant was engaged and being paid for, doing work for another body while claiming payment for being at work with the Respondent. This falls into the category of gross misconduct. This work, despite its obvious merits, was not approved in advance by the Respondent, nor was approval sought by the Complainant in advance of entering into the arrangement.  The Complainant would not provide details to the Respondent of the dates and times of the visits and the full details only emerged at the Unfair Dismissal Hearing. However, two issues are important in respect of this issue. One, the Respondent is a Community Organisation with civic service as its core purpose and two, when the Respondent became aware of the Complainant doing the prison visits it did not take any disciplinary action, specifically, against the Complainant arising out of that issue. Therefore, one must assume some degree of “acceptance” by the Respondent that the Complainant had some other relevant public body approval for the arrangement and/or recognised its benefit to Society but the Respondent was unaware of the frequency of the visits until clarified at the Hearing. The Respondent has grounds for dismissal on this issue alone. The Complainant was also visiting locations and claiming expenses, despite being expressly told not to do so. However, the Respondent did not set out these grounds clearly as fundamental issues of potential gross misconduct to the Complainant in advance of the dismissal, did not conduct a proper and fair investigation into them and whilst not explicitly set out in the dismissal letter, these two issues appear from the submissions to be the key dismissal grounds. It also appears the issue of the prison visits arrived “late in the day” to justify the dismissal.  The Complainants appeal Hearing also seems fundamentally flawed in that the people hearing the appeal had no right to overturn the dismissal nor was his 23 years of unblemished service given any significant weighting.In assessing the overall situation, I find that the Respondent had grounds for dismissal but the way it was implemented was significantly flawed. Particularly not setting out in writing the issues involved in advance of the decision to dismiss and the Appeal Hearing being effectively unable to reconsider the dismissal decision. The Complainant has requested reinstatement as a remedy. I do not see this as a viable conclusion in this case as it is obvious the parties have very high difficulty working with each other. I find that the Complainant was unfairly dismissed, primally on procedural grounds as outlined above, that there were significant grounds for dismissal based on the conduct of the Complainant in absenting himself from work without approval and refusing to obey instructions of management. The Complainant’s own actions significantly contributed to these grounds for dismissal.  I award the Complainant 15,000 Euros Compensation. This compensation reflects his own contribution to his dismissal and his personal situation which significantly reduced his efforts to try and mitigate his loss.

Dated:   October 16th 2019

Workplace Relations Commission Adjudication Officer:  Peter O'Brien

Key Words:

Unfair Dismissal