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FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: CONNECT TRADE UNION
(REPRESENTED BY MR EAMON DEVOY) - AND - MR ALAN DOUGLAS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION:
SUBJECT: 1. Appeal of Adjudication Officer's Decision No. ADJ-00024793, CA-00031544-001
Background The Appellant commenced employment with the Respondent as a Trade Union official on the 4th of December 2015. He was dismissed from that employment on the 4th July 2019. The dismissal is not in dispute. At the outset of the hearing the Court invited the parties to clarify whether they intended to call any witnesses. Both parties confirmed that they would not be calling a witness. The Law Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:
Summary submission of the Respondent The dismissal resulted exclusively from the insubordination of the Appellant who refused to carry out a reasonable instruction contrary to his contractual terms and was never instructed to “relocate” to Dublin as alleged. The dismissal resulted wholly or mainly as a result of the conduct of the Appellant and as such, by operation of the Act at Section 6(4)(b), was not an unfair dismissal. The Appellant in his role as a Construction Official based in Limerick, routinely supported newer officials and those with less experience or confidence in conducting construction site visits. He regularly travelled to other regions to carry out site visits with other officials. In early 2019 the trade union ran a campaign targeting the construction industry in the greater Dublin area. That campaign involved all of the Union’s Construction Officials and Regional Secretaries who were requested to attend in Dublin for two weeks. It was also intended that that the campaign would continue with the three Construction Officials, of whom the Appellant was one, over a further eleven-week period. In the event the Appellant attended on four intermittent days during the initial two-week phase of the campaign while refusing any further engagement in the campaign. The Appellant refused on the 8th January to accept an instruction of the general Secretary to report to the Dublin Office in connection with the campaign. On the 11th January the General Secretary wrote again to the Appellant instructing him, in accordance with RULE 116 of the Union, to report to the Dublin Office. Rule 116 provides that “Full time officials shall be under the control and obey lawful orders of the General Secretary”. In this correspondence the General Secretary provided the Appellant with a copy of his contract of employment which is specific in this regard. On the 13th January the Appellant responded to the General Secretary to say that ‘I again confirm that I will not be complying with your unreasonable instruction of me to move to the Dublin Office’. On 16th January 2019 the General Secretary again wrote to the Appellant enclosing a copy of the Trade Union’s grievance procedure and inviting the Appellant to a meeting that afternoon with the General Secretary and BN, a senior official of the Union. In that letter the General Secretary requested the Appellant to be accompanied by his shop steward. The Appellant attended that meeting in the company of his shop steward / colleague. The General Secretary, at that meeting, accepted a proposal made by the Appellant that, rather than work in Dublin for five days per week for three months as previously proposed as part of the campaign, he would attend in Dublin for three days per week for six months. The Appellant then formally withdrew his objection to working in Dublin in writing by e-mail to the General Secretary to say “Hi Paddy, as a result of ongoing discussions today I formally withdraw all previous correspondence” On 1st February the Appellant again wrote to the General Secretary stating that : “I have been left with no alternative but to reinstate all previous correspondence and escalate the matter with an immediate referral to the Workplace Relations Commission for adjudication. Trusting that the ‘status quo’ will remain in the interim while awaiting adjudication” On 4th February 2019 the General Secretary again wrote to the Appellant instructing him to attend at the Dublin Office to receive instruction for work on the Greater Dublin Construction Project and offering to assist with accommodation if required. On that date the Appellant replied to say “I will not relocate to the Dublin Office”. On 7th February the General Secretary again wrote to the Appellant encouraging him to utilise the agreed grievance procedure to raise any issue that he felt was of a serious nature. The letter also requested the Appellant to report to the Dublin office on 12th February. On 11th February 2019 the Appellant responded to state that he would be remaining ion Limerick as per his contract terms. The General Secretary reported the matter to EMC of the Union on 13th February and an investigating committee was established comprising a trustee of the Union and two members of the National Executive Committee. A note taker was provided by the ICTU. On 6th March the Chairperson of the investigating committee invited the Appellant to an investigation meeting on 13th March. The invitation advised the Appellant that he was entitled to be accompanied at that meeting in accordance with the disciplinary policy. That letter also advised the Appellant that if the investigation committee recommended that a disciplinary hearing be convened, all sanctions up to and including dismissal would be available to the Union. A copy of the disciplinary policy was enclosed with the invitation letter. Following a deferral of that meeting at the request of the Appellant through his trade union, the meeting was convened over two days on 20th and 26th March 2019. The investigating committee recommended that the matter be referred to a disciplinary hearing. The EMC accepted that Recommendation and the General Secretary wrote to the Appellant to advise him that a disciplinary hearing would be held. That hearing was conducted by the President of the Union, Mr FK, on 15th May 2020. Mr FK recommended that the ultimate sanction of dismissal was the appropriate sanction in the circumstances. The General Secretary then convened a meeting on 4th July 2020 attended by himself and Mr BN, a senior official of the Union together with the Appellant and his Trade Union representative. At that meeting the General Secretary advised the Appellant of his dismissal to take immediate effect. He was advised of his right of appeal to the National Executive Committee of the Union. The Appellant appealed the decision to dismiss him. The NEC of the Union met on 12th October 2020 to hear the appeal and decided to uphold the dismissal. The NEC, in reaching this conclusion, formed a committee of 16 people to hear the appeal. The Appellant was accompanied by his trade union representative. Having heard the appeal, the committee’s decision to uphold the dismissal was endorsed without discussion by the NEC in accordance with the Rules of the Union. That decision was communicated to the Appellant by the General Secretary. The Respondent submitted that the Appellant steadfastly refused to carry out a legitimate instruction from his employer and that refusal, repeated on five occasions over a six-month period, was contrary to his contractual terms of employment. The Appellant was assured repeatedly that the instruction to attend the Union’s offices in Dublin was in the context of a specific campaign over a defined period and that his expressed fears that he was to be transferred to Dublin permanently were unfounded, He was assured that all accommodation in a Dublin Hotel, travel and subsistence while on temporary assignment would be paid for by the Respondent. The Appellant refused to process any issue he had with the instruction by the General Secretary through the grievance procedures of the Respondent. Summary submission of the Appellant The Appellant refused to co-operate with an instruction issued by the General Secretary of the Respondent requiring him to re-locate from his position in Limerick to a position in Dublin for an unidentified temporary period. The instruction of the General Secretary was not compatible with the Appellant’s contract of employment or his defined role in the Union. He commenced employment with the Respondent in 2015 in the capacity of designated official (Construction) Region 5. He held a construction role for the western seaboard together with responsibility for servicing the needs of the Respondent in Region 5 (Limerick and Clare). He was required to reside in the Limerick area and there were no terms of his employment requiring him to relocate on an involuntary or contractual basis. The proposed relocation of the Appellant was a means of unfairly and unreasonably dealing with an internal industrial relations issue arising from complaints made by an administrative colleague of the Appellant relating to his alleged interactions with her. These complaints remain unsubstantiated, and they have not been the subject of investigation. Following a series of interactions with the General Secretary and others regarding the complaints of his administrative colleague the Appellant met with the General Secretary in Portlaoise on 14th December 2018. At that meeting the General Secretary advised of his intention to relocate the Appellant to Dublin because of concerns as regards his lack of experience, age, capability and mental health. On 2nd January 2019 the Appellant received an e-mail advising him that the Assistant General Secretary has requested assistance in an organising campaign and that the Appellant was to be relocated to Dublin while his duties in Limerick would be re-assigned to another colleague. He was instructed to report to Dublin on 14th January 2019. The Appellant responded to the General Secretary on 8th January 2019 confirming that he would not accede to a transfer to Dublin. On 13th January 2019, I response to a further instruction from the General Secretary, the Appellant again confirmed that he would not be stepping outside the terms of his contract. In that letter he requested an opportunity to address the NEC of the Respondent and that request was not acceded to. On 16th January the Appellant met with the General Secretary and agreed to withdraw his previous correspondence. That agreement was reached on the basis of his understanding that this would allow for further negotiation and the possibility of an agreed resolution to the dispute. A further meeting took place on 23rd January. At that meeting the Appellant sought an end date for any relocation and that was not forthcoming. On 28th January 2019 the Appellant was informed that that a colleague had been given responsibility for the region and that instructions had been given to the administrative assistant that she was to only work with that colleague. The Appellant wrote to the General Secretary on 1st February 2019 re-instating his previous correspondence and advising of a referral of the matter to the Workplace Relations Commission. The General Secretary again wrote to the Appellant on 4th February 2019 instructing him to report to Dublin. A further e-mail issued on 7th February from the General Secretary advising that the Appellant would be required in Dublin for three days per week for a maximum of six months. The Appellant responded again on the 11th February setting out his objections to an instruction to relocate. On 6th March 2019 the Appellant was advised that the General Secretary had escalated matters to the Executive Management Committee (EMC) for investigation under the Respondent’s disciplinary procedure. The Appellant attended a meeting of an investigating committee appointed by the EMC on 20th March 2019. As part of its investigation the investigating committee interviewed the General Secretary, Mr BN and Mr DB, an official, of the Respondent. The notes or any report of these interviews were not provided to the Appellant. The investigation committee report was put before the Respondent’s Executive Management Committee on 12th April 2019. Two members of the investigation committee took part in a ballot to endorse their own report. The Appellant did not receive a copy of the report until 16th April 2019 when the General Secretary provided it to him. On 24th April he received a letter from the General Secretary instructing him to attend a disciplinary hearing. That letter did not outline a disciplinary charge or clarify that the hearing could result in the Appellant’s dismissal. A disciplinary hearing was arranged for 15th May 2019 at which the Appellant’s representative queried the reasonableness of the instruction issued by the General Secretary based on his contract terms. The representative also pointed out that the EMC had made a decision to endorse the investigation report without being provided with the Appellant’s documents of defence. The Appellant was called to a meeting by the General Secretary on 4th July 2019 where he was presented by the General Secretary with a pre-prepared letter of dismissal. That letter advised that the Appellant was dismissed with immediate effect and that if he wished to appeal that decision, he should do so to the General Secretary who would refer that appeal to the National Executive Committee. The letter of dismissal was signed by the General Secretary. On 5th July 2019 the Appellant’s representative wrote to the General Secretary requesting clarification as to the identity of the individual or individuals who had accepted the recommendation of the Chairman of the Disciplinary Hearing and also sought a copy of that recommendation which had not been provided to the Appellant. On 9th July 2019 the General Secretary provided the Appellant with a copy of the recommendation to dismiss and confirmed in writing that the decision to accept the decision to dismiss was made by the General Secretary. That letter of 9th July 2019 confirmed that the General Secretary was the sole decision maker in the decision to dismiss the Appellant. The Appellant appealed the decision to dismiss him and an appeal hearing was convened by the National Executive Committee (NEC) on 12th October 2019. The General Secretary was present at the appeal hearing. The NEC upheld the decision to dismiss, and this decision was conveyed to the Appellant on 14th October 2019. The Appellant submitted that the instruction to relocate to Dublin was outside his terms of employment as expressed in his contract of employment. There is no mobility clause in that contract of employment. The Appellant cited case law which, it said, makes clear that an employer which relocates or re-deploys a worker must act reasonably. The Appellant submitted that the Respondent did not act reasonably in this case. The Appellant submitted that the General Secretary acted impermissibly throughout the process and, having initiated the disciplinary process to address the Appellant’s refusal to accept an instruction he had given, ultimately made the decision to dismiss the Appellant. This infringed upon the principles of natural justice and amounted to the General Secretary becoming the judge in his own cause. The Appellant sought to be compensated for his unfair dismissal. Discussion and conclusions. The Act sets out at Section 6 that:
An unusual aspect of the within appeal is that neither party chose to put witness evidence before the Court when invited to do so. The absence of such evidence is of course especially relevant where the Court is required to establish facts where such are in dispute between the parties. The basis for the Appellant’s contention that the instruction issued to him by the General Secretary was unreasonable appears to be his submission that he was at all times being instructed to re-locate his place of work. The Respondent on the other hand submits that the Appellant was at no time being required to relocate his place of work but was rather being asked to temporarily report to the Dublin office to take part in a campaign related to the construction industry. The Respondent submitted that 80% of construction industry members for whom the Appellant had responsibility were in fact located in Dublin at all material times. The Respondent also submitted that it was not unusual for the Appellant or any other official of the union to temporarily work in locations other than their assigned location in order to carry out required work elsewhere in the country. Certain key elements of the matters relevant to this area of factual disputation were not disputed before the Court. There is no dispute that, at a point in time, the Appellant had agreed to work in the Dublin Office for a defined period but subsequently withdrew that agreement for stated reasons. The Respondent’s submission that the Appellant was assured that at all times while working in Dublin he would be in receipt of accommodation, subsistence and other expenses in accordance with arrangements for officials who temporarily work away from their work base was not disputed before the Court. The fact of a time limited Construction related campaign being conducted in Dublin at the material time was not disputed before the Court. The fact that all construction officials of the Respondent were to be involved in that campaign was not disputed before the Court. The Respondents’ assertion that the contract of employment of the Appellant stated that he must comply with the Rules of the Union was not disputed. Neither was it disputed that Rule 116 of the Trade Union provided that “Full time officials shall be under the control and obey the lawful orders of the General Secretary” Against the background of these undisputed facts the Court concludes that
Having reached this conclusion the Court does not consider it to be unreasonable that an investigation resulting in a disciplinary procedure was undertaken by the Trade Union. The Court is conscious that the Rules of the Union include certain provisions as regards the role of the General Secretary in the conduct of such procedures. Those rules however cannot supplant the obligation resting upon the Respondent to act fairly and with proper regard to the need for fair procedure. The Court notes that the General Secretary initiated the complaint against the Appellant which resulted in an investigation. The Court also notes that the alleged disciplinary matter was an alleged refusal by the Appellant to comply with an instruction repeatedly issued by the General Secretary himself. That investigation resulted in a recommendation to conduct a disciplinary procedure. That recommendation was endorsed by a committee of the Respondent which included two persons who had been party to the recommendation. The Court regards the fact that these two people took part in the decision to endorse their own recommendation as offending against the principles of natural justice which include the principle of nemo iudex in causa sua – no person can be a judge in their own cause. At that point a disciplinary hearing was held which resulted in a recommendation that the Appellant be dismissed. The General Secretary confirmed in writing to the Appellant’s trade union that he alone took the decision to accept that recommendation. The Court concludes that the General Secretary alone took the decision to dismiss the Appellant. In the view of the Court, the role of the General Secretary in initiating a complaint arising from the Appellant’s refusal to comply with his instruction and ultimately taking the decision to dismiss the Appellant offended against the principle of natural justice often referred to as “nemo iudex in causa sua” – no person should be a judge in their own cause. In the view of the Court, this sequence of involvements by the General Secretary fatally undermined the Respondent’s assertion that it had conducted all procedures fairly when arriving at the decision to dismiss the Appellant. The Court is fortified in reaching this conclusion when account is taken of the fact that the General Secretary was present at the National Executive Committee meeting which considered the Appellant’s appeal, and which decided to uphold the decision of the General Secretary to dismiss the Appellant. Having regard to all of these issues associated with fairness of procedure, the Court concludes that the dismissal of the Appellant was unfair. Having reached such a conclusion, the Court is required by the Act at Section 7(2)(f) to consider the appropriate redress. The Respondent has submitted that trust in the employment relationship has been lost and the Appellant has submitted that compensation of the appropriate form of redress. The Court concludes that compensation is the appropriate form of redress. The Court is required by the Act at Section 7(2)(f) to consider the extent to which the conduct of the Appellant contributed to his dismissal. Having reached the conclusion that the Appellant’s repeated refusal to comply with the General Secretary’s instruction to temporarily work from the Dublin office amounted to unreasonable behaviour on his part, the Court assesses the contribution of his own conduct to his dismissal at 80%. The Act at Section 7(2) requires the Court, when considering the matter of redress, also to consider the measures (if any) adopted by the Appellant to mitigate his losses. Having regard to the submissions of the parties and the evidence of the Appellant, the Court concludes that the Appellant has demonstrated efforts since his dismissal to mitigate his losses but also concludes, having particular regard to his confirmation that he made no attempt at all to mitigate his continuing losses after July 2020, that in the overall his efforts to mitigate his losses were inadequate. The Court notes that his total annual earnings inclusive of all elements of remuneration prior to his dismissal were €84,293 per annum. The Court considered his earnings in the period following his dismissal and prior to the cessation of his efforts to mitigate his losses and has concluded that the financial loss attributable to his dismissal amounted to €70,752. Having concluded that the Appellant contributed to the degree of 80% to his own dismissal, the Court assesses the level of compensation which is just and equitable having regard to all the circumstances as €14,152. Decision The Court decides that, for the reasons outlined above, the Appellant was unfairly dismissed and that the appropriate form of redress is compensation. Having regard to the efforts made by the Appellant to mitigate his losses and the contribution his own conduct made to his dismissal, the Court orders the Respondent to pay the Appellant compensation in the amount of €14,152. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
