UDD2127

1. Appeal of Adjudication Officer Decision No(S) ADJ-00013234 CA-00017416-001

BACKGROUND:

2. The Appellant and Respondent appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 23 March 2021. The following is the Determination of the Court:




DETERMINATION :

This matter comes before the Court as an appeal by Paul Martin (the Appellant) and Sigma Aldrich Ireland Limited (the Respondent) against the decision of an Adjudication Officer made under the Unfair Dismissals Acts 1977 – 2015 (the Act) in a complaint of unfair dismissal made by the Appellant against his former employer, the Respondent. The Adjudication Officer found that the Appellant had been unfairly dismissed and awarded compensation in the amount of €8,200.

The Appellant was employed by the Respondent from August 2002 until the termination of his employment on 25^th August 2017.

The fact of dismissal is in dispute.

Summary position of the Appellant

The Appellant submitted that he received a letter from the Respondent dated 25^th August 2017 which advised him that the Respondent was left with no alternative but to terminate his contract with effect from 25^th August 2017.

The Appellant submitted that he had been accused of various disciplinary infractions over a number of years and of taking a significant number of sick days. He had been placed on paid suspension on 30^th May 2017. Following a disciplinary process he was due to return to work on 17^th August 2017. The Appellant did not accept the account of the Respondent as to what transpired at a meeting on the 17^th when he attended a planned meeting with Mr McC who was a manager of the Respondent.

He had been the subject of disciplinary proceedings which commenced in May 2017 and which, in August 2017, resulted in him being issued with a disciplinary penalty which included a final written warning which was to have a lifetime of 24 months. The penalty included a requirement that he give undertakings to adhere to standards of attendance and behaviour. He attended a meeting on 14^th August 2017 where the penalty was outlined and attended at Mr McC’s office on the 17^th to finalise the matter and thereafter he had intended to recommence working following his period of paid suspension.

In the event, he did not commit to the terms of the disciplinary penalty and he left the workplace having met MrMcC. He clarified to the Court that his difficulty with the disciplinary penalty imposed upon him was the fact the final written warning was to remain active for 24 months.

Having left the premises on the 17^th August, he awaited further contact from the Respondent. He was however dismissed on 25^th August 2017 without further contact from the Respondent. Nobody had tried to contact him in that period

The Appellant submitted that he was unaware of an internal avenue of appeal and nobody had advised him that he had such an entitlement. He did write to the Respondent on 25^th September 2017 seeking clarity as to the reason for his dismissal and an outline of the avenue of appeal open to him. The Respondent responded to that letter on 29^th September 2017 to advise him that he had not been dismissed.

The Appellant confirmed to the Court that, following his dismissal, he had made no efforts to secure alternative employment in order to mitigate the losses he had suffered as a result of his dismissal although he had, at the behest of the agents of the Department of Social Protection, attended some courses after July 2018.

Summary position of the Respondent

The Appellant had been subject to a disciplinary investigation which commenced on 30^th May. He was suspended with pay on that date also. The outcome of that investigation was that the Appellant was placed on a final written warning and in addition was required to adhere to a set of reasonable standards of attendance and behaviour as would be expected of all employees.

The report of the investigation was provided to the Appellant on 21^st July 2017 and the Respondent met the Appellant on 14^th August 2017. At that meeting the Appellant, who was represented by his Trade Union shop steward as he had been throughout, confirmed his agreement to the outcome of the disciplinary investigation.

It was arranged that the Appellant would formalise his agreement to the terms of the outcome by signing a document to that effect on 17^th August 2017. Instead, on the 17^th of August he attended briefly at the office of Mr McC in an agitated manner, stated that he would not be signing the document and left abruptly.

The Appellant did not exercise his right of appeal of the disciplinary sanction.

He did not present for work on the 17^th August after his departure from the office of Mr McC and remained absent from his rostered shifts with effect from that date.

It became clear to the Respondent that the Appellant did not intend to continue in his employment. Several efforts were made to make contact with him including by his Trade Union representative but no contact was achieved.

On 25^th August the Respondent’s site director, Mr J.E., wrote to the Appellant advising him that he had concluded that the Appellant did not intend to return to work or to commit to the behaviours required from all employees. The letter further advised the Appellant that Mr J.E, on that basis, was left with no alternative “but to terminate your contract with” the Respondent “from 25^th August 2017”. The Respondent had advised Ms M.D.K, the Appellant’s Trade Union Official, on the 24^th August of the fact that such a letter would issue on the 25^th.

The Respondent assumed that the Appellant did not intend to return to work and deemed that he had terminated his own employment. That conclusion was fortified by the fact that the Appellant had made contact with it regarding arrangements for his pension scheme and had indicated an intention to move abroad.

On 13^th September 2017, Ms M.D.K contacted the Respondent to request an appeal of the decision to dismiss. The Respondent advised her that the Appellant had not been dismissed but that he could appeal the disciplinary sanction which had been imposed upon him. The Respondent heard no further in relation to the matter.

Ultimately, the Appellant, on 25^th September, wrote to the Respondent seeking clarity on the reason for his dismissal and detail of his avenue for appeal. The Respondent, on 29^th September, advised him in writing that he had not been dismissed but rather had ended his own employment. In addition, that letter advised the Appellant that his position had been filled and that the Respondent considered the matter to be closed.

The Respondent submitted that no dismissal had taken place. The Appellant had abandoned his employment and the Respondent had processed the termination on that basis in the absence of contact from the Appellant and the inability of the Respondent to make contact with him.

The Appellant had failed to exhaust internal avenues of appeal and submitted that the letter from the Appellant of 25^th September cannot be regarded as a reasonable attempt to pursue an internal appeal. This failure on the part of the Appellant, having regard to the decision of the Employment Appeals Tribunal in Murphy versus Chartbusters [UD321/2009], is fatal to the within appeal.

The Respondent also drew the Court’s attention to the decision of the Tribunal in Martin Jennings Wholesale Ltd v Zulfqar Ali [UD463/2014] wherein it found that the employer, having written to the worker to advise him that it had taken the view that he had terminated his own employment, had not unfairly dismissed the worker.

Summary of evidence on behalf of the Respondent

Mr J.E, the Respondent’s site director, gave evidence. He confirmed that he had issued the letter of 25^th August and that he had thought at the time that the Appellant was not coming back to the employment.

He had been advised by Mr C.T., the then HR manager of the Respondent, that efforts had been made in the period after 17^th August to contact the Appellant without success. He confirmed that Mr C.T. had provided him with a draft of the letter which ultimately issued on 25^th August. He could not recall whether he or Mr C.T. had drafted the sentence which advised the Appellant that the Respondent was left with no option but to terminate the contract. He confirmed also that the letter did not advise the Appellant of a right to appeal the termination of his employment.

He stated that his intention in issuing the letter of the 25^th August was to put closure on the issue. When he was sending the letter he understood that the Appellant was an employee and once the letter issued, the Appellant was no longer working for the Respondent. He agreed that the letter terminated the Appellant’s employment.

Relevant law

The Act at Section 1, in relevant part, defines dismissal as follows:

“ dismissal”, in relation to an employee, means—

• (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

  (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

Section 6(1) of the Act makes provision as follows:

• 6. (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

• 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 the adjudication officer or the Labour Court , 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 under section 17 of 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,….
  • (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, …..

      ( f ) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Discussion and conclusions

The matter before the Court is the complaint of the Appellant that he was unfairly dismissed on 25^th August 2017. The Respondent contends that no dismissal occurred on that date or at all.

The Act at Section 1 defines dismissal for the purposes of the Act in the following terms:

“dismissal”, in relation to an employee, means—

• • • • (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

• • “On this basis I am left with no alternative but to terminate your contract with Sigma Aldrich from 25^th August 2017”

Having regard to these circumstances, the Court concludes that the Appellant was dismissed by the Respondent as alleged on 25^th August 2017. The Act at Section 6(1) sets out that dismissal of an employee shall be deemed, for the purposes of the Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. In the within matter therefore the Respondent carries the burden of establishing that substantial grounds justified the dismissal of the Appellant. It is trite law that the Respondent is also under the burden of establishing that the procedures employed to arrive at the decision to dismiss were fair and observing of natural justice.

There is no dispute between the parties as regards the factual matrix of the within matter. The Appellant was the subject of a paid suspension from May 2017 and a disciplinary process concluded with a decision to issue a final written warning and to require the Appellant to behave in the manner expected of all employees. It is common case also that the Appellant attended his workplace on 17^th August, refused to accept the outcome of the disciplinary process and left the workplace immediately and did not thereafter attend his workplace to perform his rostered shifts and made no further contact with the Respondent until some weeks after the termination of his employment.

It is not disputed that the letter which terminated the employment of the Appellant did not outline to him the means by which he could appeal the decision to dismiss him.

The Court has noted carefully the background to the events of 17^th August and the history of the period from 17^th August 2017 and 25^th August. There is no submission from the Respondent that any procedure was conducted wherein the Appellant was afforded the opportunity to address any allegation against him which might lead to his dismissal or to respond to any case made against him. The decision to dismiss the Appellant was taken unilaterally by the employer in the period between 17^th August 2017 and 25^th August. No submission has been made that the decision to dismiss took account of any matter which had occurred before 17^th August.

The Court takes into account the provisions of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) which emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of him or her and to know any case being made against him or her and to have a fair opportunity to respond to any such case. The Code also emphasises the importance of the availability of an internal mechanism wherein a sanction which has been imposed can be appealed. The extensive jurisprudence of this Court and the Employment Appeals Tribunal is to the effect that an employer contemplating disciplinary sanction against an employee is obliged to ensure the observance of fair procedure and natural justice before making a decision in relation to the matter. In the within matter, no procedure at all was followed and the decision to dismiss was taken without engagement with the employee. In addition, the letter of dismissal failed to advise the Appellant of his right to appeal his dismissal and to set out the means to do so.

In the within matter the Respondent has submitted and given evidence to the effect that it did not, within the meaning of the Act, intend to dismiss the Appellant within the meaning of the Act. It has outlined the history of matters involving the Appellant and has, in evidence, asserted that it was not the intention of the Respondent to dismiss the Appellant but that it had deemed him to have abandoned his own employment.

The Court however, having decided that the Appellant was dismissed by the Respondent on 25^th August 2017, has concluded that, in the absence of the operation of a fair procedure or any procedure at all, the Respondent has failed to discharge the burden resting upon it to establish that the dismissal was fair.

The Court distinguishes the within matter from the case of Martin Jennings Wholesale Ltd v Zulfqar Ali [UD463/2014] on the basis that the Respondent did not, as had occurred in that case, write to the Appellant to advise him that the Respondent deemed him to have terminated his own employment. The Respondent in this case advised the Appellant that the Respondent was, by that letter, terminating the employment contract. Similarly, noting that the Respondent, in advising the Appellant of his dismissal, did not advise him of the fact or means of an available appeal, the Court distinguishes the within appeal from the decision of the Tribunal in Murphy versus Chartbusters [UD321/2009]. The Court is fortified in that conclusion by the fact that when the Appellant raised the matter of an appeal with the Respondent, albeit one month after the event, he was advised that he had not been dismissed at all.

The Court has concluded that, having regard to circumstances of the matter, the appropriate redress is that of compensation.

In assessing the compensation which is just and equitable having regard to all the circumstances, the Court has taken account of the degree to which the conduct of the Appellant contributed to the dismissal. The Court concludes that the Appellant, by failing to attend for work over a period of nine days, by failing to make contact at all with the Respondent throughout that period of time and by refusing to commit to behaving in the manner expected of all employees of the Respondent has, by his conduct, contributed very significantly to his own dismissal.

In addition, the Court has taken into account the measures adopted or not adopted by the Appellant to mitigate his loss. The Appellant submitted to the Court at the hearing that he made no effort at all to mitigate his loss until almost twelve months after his dismissal when he, at the behest of agents of the Department of Social Protection, attended some courses. He confirmed however that he had not applied for jobs at all in an effort to mitigate the losses he has suffered. The Court concludes therefore that this failure to attempt to mitigate his loss must reduce very significantly the amount of compensation which should be paid to the Appellant.

Decision

The Court decides that the Appellant was unfairly dismissed and that compensation is the appropriate remedy. Having regard to the contribution of the Appellant to the dismissal and his failure to make efforts to mitigate his loss, the amount of compensation which the Court determines is just and equitable in the circumstances is €5,000. The decision of the Adjudication Officer is varied.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CO'R	______________________
20/04/2021	Chairman