ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000756
Complaint(s)/Dispute(s) for Resolution:
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-00001149-001 |
27/11/2015 |
Date of Adjudication Hearing: 29/02/2016
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Further correspondence was exchanged following the hearing with the final correspondence received on the 24th.March 2015
Complainant’s Submission and Presentation:
15/09/2015-Claimant received letter from Office Manager requiring him to attend Disciplinary meeting to explain: *Alleged persistent lateness-21/08/2015 and 15/09/2015 *Failed to report lateness in line with lateness reporting procedure. 21/09/2015 - Meeting took place with management 22/09/2015- Letter of Dismissal issued signed by Manager. 26/09/2015-Letter issued offering date for appeal hearing-signed by a Manager 20/10/2015-Appeal Hearing was heard by Manager 31/10/2015-Letter issued upholding decision to dismiss, signed by Manager. A Final Written Warning on a separate issue was referenced in this letter. Disciplinary Procedures were issued with initial letter of 15/09/2015 |
It was submitted on behalf of the claimant that the sanction of dismissal was disproportionate and that fair procedures had not been followed by the respondent.It was advanced that the respondent was represented by Ms.AMD and Ms.SN at the September 2015 disciplinary meeting where the claimant was dismissed and that Ms.SN also conducted the appeal meeting.It was submitted that Ms.SN’s involvement in both stages was not in keeping with IR protocol as Ms.SN was involved in the decision to dismiss and in the appeal where she was unlikely to overturn her own decision.
It was submitted that the 2 incidents of lateness in August and September 2015 were genuine – the claimant had problems with the alarm on his mobile phone and he had apologised to the manager Mr.AK. It was contended that these were not persistent incidences and the sanction of dismissal was excessively harsh. The claimant had worked both day and night shifts which could result in irregular sleeping patterns and oversleeping.It was advanced that the company procedures allow for length of service to be considered and consequently some flexibility should have been allowed given the claimant’s 8 years with the company.The procedures also allowed for the extension of the final written warning and this should have been considered.
At the hearing the claimant insisted that the manager Mr.AK had threatened him at a previous meeting on the 22nd.March 2014 – he suggested that the manager was prejudiced against him and on that date he had said at the meeting if he did not get him for this he would sack him for something else.The claimant asserted that he did not sign the minutes of that meeting as the record did not include this threat.
Respondent’s Submission and Presentation:
The claimant was employed as a General Operative with the respondent from 2009 until his dismissal on the 22nd.Sept.2015.The respondent set out the background to the claimant’s disciplinary history with the Company in 2012 culminating in a final written warning.It was submitted that a further disciplinary issue arose in 2014 but the investigation was inconclusive and no sanction was imposed.
In August 2014 , the claimant requested 3 periods of annual leave – one was declined owing to service requirements and after being informed of same the claimant stated that he could not work with the stress and left indicating he did not know if he would be in the following day.A discipilinary process ensued and the claimant was issued with a first written warning.The claimant’s appeal against the sanction was not upheld.In Oct. 2014 a further disciplinary process ensued when the claimant was accused of leaving his work station unattended.The outcome of this process was the issuing of a final written warning.Following 2 late attendances in August 2015 , a disciplinary meeting took place on the 15th.Sept. and the respondent submitted that he failed to give a satisfactory explanation for his late attendances and consequently as he was already in receipt of a final written warning , the claimant was dismissed .The claimant appealed the dismissal and it was submitted that because he offered no further explanation or reasoning for his behaviour , the decision to dismiss was upheld.It was submitted that the claimant was afforded all of his rights and entitlements and the respondent observed the provisions of the disciplinary procedure throughout the dismissal process.
The respondent categorically denied that he had threatened to sack the claimant at the meeting on the 22nd.March 2014 – he insisted the minutes were an accurate record of the exchanges at the meeting and that the claimant’s assertion that he did not sign the minutes because of inaccuracies contained therein was not credible – it was contended that the claimant had failed to sign minutes on a regular basis and he could have recorded his dispute about the minutes in correspondence to the employer if he hade had wanted to do so.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
[Section 8(1B) of the Unfair Dismissals Act, 1977 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.
Decision:
I have reviewed the evidence presented at the earing and noted the follow up submissions made by the parties with respect to the meeting of the 22nd.March 2014.
While I acknowledge the respondent’s assertion that Ms.N’s involvement at the dismissal meeting was confined to note taking, I accept the unions contention that the dismissal process was procedurally flawed by virtue of the involvement of Ms.N at the dismissal meeting and the appeal meeting – where she was the decision maker – this compromised the process and was unfair to the claimant. Additionally I accept that the decision to dismiss was disproportionate particularly given the provision in the procedure which allows the respondent to take account of length of service during the disciplinary process. Consequently I am upholding the complaint of unfair dismissal.
However, on the basis of the chronology of the claimant’s actions presented by the respondent, I am satisfied that the claimant was in breach of procedures on a number of occasions and thereby contributed to his own dismissal - accordingly I am limiting the award of compensation to €5,000.
Dated: 14th July 2016