FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CASTOLIN EUTECTIC IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - RAFAL KITA (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal Of Adjudication Officer Decision No: ADJ-00005633 CA-00007880-001.
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudicator to the Labour Court in accordance with the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 15th November, 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Rafal Kita (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00005633 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that he was unfairly dismissed by his former employer Castolin Eutectic Ireland Limited (hereafter the Respondent). The Adjudication Officer found that the dismissal decision was not unfair and that the claim failed.
Background
The Complainant commenced employment as a general operative with the Respondent in February 2006. His employment ceased on 12th August 2016. The Respondent’s position is that he was dismissed for Gross Insubordination. The fact of dismissal is not in dispute. The Complainant and the Respondent both elected at the start of the Labour Court hearing not to give direct evidence but to proceed by way of submission.
Complainant’s case
An issue arose between the Complainant and his supervisor on the 12thMay 2016. It is the Complainant’s case that he carried out the tasks requested but that he was also required to assist and cover for another worker for periods on the day in question. He disputes that he was told that certain items were a priority and needed to be shipped that day. He does not dispute that he told another supervisor that he did not trust his supervisor. On the day in question he asked to speak to the operations manager as he was unhappy with the interaction he had with his supervisor.
The complainant was out sick for a number of days and on the day he returned to work he was approached by the operations manager while he was working his machine. He was asked to explain what had happened on the 12thof May 2016 with his supervisor. He explained what had occurred and how he had requested a meeting with the Operations manager as he was distressed by the interaction.
As he was finishing his shift that day he was handed a letter dated 23rdMay 2016 requesting that he attend an investigation the next day. The issues to be investigated were cited as 1) The Complainant’s work performance and 2) the Complainant’s interaction with his supervisor on the 12thof May. He was not provided with a copy of any complaint against him.
The investigation meeting took place on the 24th and 26thMay 2016. The Complainant was not provided with a copy of the complaint against him, witness statements, or afterwards with minutes of the investigation meeting. It is the Complainant’s position that he was advised by the Respondent that it was not company policy despite the fact a note taker was at the investigation meeting to supply a copy of notes taken at a meeting of this nature. The Complainant was then on sick leave and annual- leave. On his return, he attended a meeting with the Operations manager who advised he was not satisfied with the explanation that the Complainant had given. The Operations manager indicated that refusing to follow an order given on more than one occasion showed that he did not accept the authority of the supervisor. On that basis, he had concluded, that this behaviour constituted gross insubordination and that the matter should go forward for a disciplinary hearing.
The Complainant was suspended on full pay pending that process. The disciplinary hearing took place on the 4thand 11thAugust. Again, the Complainant was not provided with a written copy of the complaint against him. He was dismissed on the 12thAugust with a right of appeal to the CEO. The appeal was heard on the 4thOctober and the dismissal was upheld.
The Union on behalf of the complainant argued that he was not afforded fair procedure and that the process was flawed. They pointed to the fact that the initial investigation went beyond what was set out in the original letter of 23rd May 2016. The Complainant was not given written copies of the complaint against him nor was he given access to witness statements. References by the Investigator to Mr Alan O Toole’s statement which was not relevant to the issue under investigation and reference to alleged issues in the previous years are clear evidence that the Investigator in taking these things into consideration when coming to the conclusion of gross insubordination went beyond the remit set out in the letter of 23rdMay 2016.
The refusal of the company to supply the statements coupled with their refusal to supply the notes of the meeting meant the Complainant was not given a fair opportunity to defend himself and that the company did not follow fair procedures. In supporting the requirement for fair procedure, the Union cited several cases in particularSamuel J Frizelle v New Ross Credit Union[1997] IEHC 137 where the High Court set out the following legal principles to be observed:
- “Where a question of unfair dismissal is in issue, there are certain premises 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.
2. 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.
3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
5. 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.
- “Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.
- “I am satisfied that by virtue of his right to fair procedures the plaintiff was entitled to be furnished, well in advance of the oral hearing, with a copy of the transcript of his interview with Messrs Darcy and Cullen, and with a copy of the evidence to be tendered against him, and the defendants were accordingly at fault in refusing, to comply with the plaintiff solicitor's request for these.”
Respondent’s Case
On the 12thMay the Complainant’s supervisor informed him that packing was a priority and for the remainder of his shift he was to concentrate on packing only. He gave him a handwritten priority list containing the order the products were to be packed in. Shortly after, he returned on two occasions to advice of a change in the order of priority but the complainant was on his break.On the third occasion that the Respondent revisited the packing area the Complainant was working and when he was asked what he had been doing for the past hour he initially did not reply. There then followed an exchange of words between the parties. Later on the same day the supervisor returned and asked to be shown what had been packed off the priority list.The Complainant showed him the work that had been done and asked to speak to the Operations manager who as it happened was not in work that day. During the course of the exchanges the Complainant stated in front of another supervisor that he did not trust his own supervisor. When the supervisor checked the work later that day he discovered that the priority list had not been followed. As a result of the order not being ready for shipment that day the company lost the order.
The supervisor made a complaint to the Operations manager in relation to the incidents of the previous day stating that 1) the Complainant had repeatedly refused to follow a legitimate instruction and 2) in front of other supervisors he had stated that he didn’t trust his supervisor. The supervisor felt that this undermined him in front of his colleagues.
On foot of the complaint from the supervisor the Respondent appointed the Operations manager to investigate the complaints. An investigation was then carried out. The Respondent confirmed that the Complainant was not given the original complaint and that the witness statements were verbal and that while he was informed of what the witnesses had said he did not have either written statements or an opportunity to question them on their statements. The respondent confirmed that the notes of the meeting had not been made available to the Complainant. In relation to interviewing Mr O’Toole it was the Respondents position that there had been issues in the past with how the Complainant interacted with his supervisors and that Mr O’Toole had been involved therefore his statement was relevant to the investigation.
It was the Respondents position that fair procedure had been followed at all stages. The Complainant was represented at all stages of the process by his Union and the process had on occasion been adjourned to facilitate the union. The Respondent had followed fair procedure and the Complainant had been given every opportunity to state his case.
The law
Section 1 of the Act defines dismissal in the following manner
(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,“dismissal”, in relation to an employee, means—
(b)…
Section 6(1) states
“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.”
Issue for the Court
Dismissal as a fact is not in dispute therefore it is for the respondent to establish that in the circumstances of this case the dismissal was fair.
Discussion
The Complainant’s case is that his dismissal was unfair as the process that led to the decision to dismiss him does not meet the standard for fair procedure set out in case law. He was not given a written complaint nor was he given access to witnesses or notes of the investigation meeting and the investigation went beyond the terms of reference set out in the letter of 23rdMay 2016. The Complainant does not dispute that there was an issue with his supervisor on the 12thMay 2016 or that he stated that he did not trust his supervisor but that this was not a substantial ground to justify dismissal as the appropriate sanction.
The Respondent does not dispute the fact that the Complainant was not given the details set out above. The Respondent in putting forward their case indicated that previous behaviour had been considered and hence the involvement of a witness who had not been present at the incident on the 12thMay 2016. They felt due process had been followed and that the conduct complained off was gross subordination which met the requirement of being a substantial ground there justifying his dismissal.
The Court is satisfied from the submissions and the oral submissions made on the day that the Complainant did not follow a reasonable instruction. However, the Court is not satisfied that failure to do so reaches the bar for gross insubordination or meets the requirement in the circumstances of this case of being a “substantial ground”. In relation to the process followed the Court has concerns that issues were taken into account that in a procedural context were not related to the investigation of the incident of 12thMay 2016 as set out in the terms of reference and that the Complainant was denied access to witnesses and notes of the investigation meeting. Taking into account all the above the Court cannot see how this dismissal could be deemed to be fair.
Remedy
Section 7 of the Act states
- 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 undersection 17of 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, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
The Court having considered the remedies available has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.
Having assessed all the information before it the Court considers that the Complainant has suffered financial loss as a result of the wrong he has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €10,000. The Court so determines.
Determination
The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €10,000. The decision of the Adjudication Officer is set aside. The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
07 December 2017______________________
JDDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.