ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007074
Parties:
| Complainant | Respondent |
Parties | A General Operative | A Food Processing Company |
Complaint(s):
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-00009656-001 | 10/02/2017 |
Date of Adjudication Hearing: 03/10/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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).
1: Summary of Complainant’s Case:
The Complainant was denied the most basic and fundamental principles of Natural Justice. The decision of the meeting of the 25th July was completely pre-ordained and no realistic consideration was given to any excuses or mitigating factors being advanced by the Complainant. He was not given an opportunity to appeal the Dismissal decision. Medical certificates provided, specifically for the periods prior to the dismissal, were not given due weight by the employer. Previous warnings on file dating from September 2015 were clearly well spent and could have no bearing on the dismissal proceedings. Notwithstanding the above the Dismissal decision was completely disproportionate for an employee of such long service, 16 years, as the Complainant. |
2: Summary of Respondent’s Case:
The Dismissal decision was fair due to the sick leave record of the Complainant, his levels of absenteeism and the impact his absences were having on the general running of the business. It is a small employer and the unpredictable absences of the Complainant made efficient running of the business very difficult. The Dismissal was the culmination of a series of incidents that had taken place over a considerable time period. These had effectively convinced the employer that the employment relationship was not sustainable going forward. The Respondent had always had a good relationship with the Complainant and had always looked out for him but in the final analysis his performance and attendance had to lead to the termination decision. |
3: Findings and Conclusions:
3:1 The Law. The principles of Natural Justice are well established in Unfair Dismissal Employment Law cases. In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct: “1. The complaint must be a bona fide complaint unrelated to any other agenda of the complainant. Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.
Put very simply, principles of natural justice must be unequivocally applied.” These principles are effectively set out in SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures. It is also well accepted legal fact that it is not the role of the Employment Tribunal or the Adjudicator to re investigate a termination decision but rather to ensure that all rules of Natural Justice and good procedures were followed. 3:2 The evidence considered. The meeting on the 25th July and the Dismissal decision had serious shortcomings as regards these legal principles. The opportunity afforded to the Complaint to provide alternative explanations appeared limited and the speed of the Management dismissal decision was unusual. It appeared to have been taken in advance of the meeting. There was no opportunity afforded to the Complainant to appeal the decision. It was clear that the Complainant was a far from ideal employee and the patience of the Employer had been severely tested. The situation regarding the “near drowning” incident earlier in the month and the later submission of a medical certificate regarding “Back pain” would have left most reasonable employers with the feeling that the employment relationship was under severe threat. However, Employer impatience, no matter how well founded is not a licence to depart from well established legal procedures. 3:3 Conclusion The precipitate actions of the Respondent employer in effectively rushing through a Dismissal decision were outside the Law and must result in the Dismissal being deemed Unfair.
The actions of the employee were far from ideal and have to be reckoned with in any consideration of redress.
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4: 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 Complainant had opted for Financial Compensation and this was confirmed at the oral hearing.
Redress in the amount of nine months pay (36 weeks) or € 15,656 gross pay ( from information supplied on the claim form) is ordered. However, having considered the oral evidence presented at the Oral hearing I was of the view that the Complainant was responsible to a factor of 50% for his dismissal. I did not find his evidence at all reassuring. Accordingly, the amount awarded as compensation for the Unfair Dismissal is (€15,656 / 2) = €7,828 - stated as gross pay. Advice from the Revenue Commissioners regarding the taxation of this figure should be sought prior to the payment being made.
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Dated: 4/12/17
Workplace Relations Commission Adjudication Officer: Michael McEntee
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