ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006569
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 30/03/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Location of Hearing: Galway Maldron Hotel
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced full-time employment with the Respondent in the role of Janitor/Maintenance Person on 8 June 2004. The Complainant's contract of employment provided that his normal hours of work were from 9 am to 5:30 pm daily, which amount to a 39 hour week. However the Complainant availed of a provision in his contract which allowed him to finish early on Friday and work a 37 hour week. The Complainant had a contractual entitlement to 26 days annual leave per annum at the date of his dismissal.
The Respondent was aware that the Complainant was involved in refereeing GAA matches. The Respondent agreed with the Complainant that, where possible, it would try to facilitate his refereeing games during working hours on condition that he would request and obtain management approval at least two days in advance. The facilitation of such requests was subject to business and operational needs.
On the morning of 25 May 2016 the Complainant formally made an annual leave request for three hours leave on Friday, 27 May 2016 and for two full days leave on 1 and 2 June 2016. These were made through the Respondent's automated leave system.
The days leading up to the week commencing 30 May 2016 and the week itself where the busiest time of the year for the Respondent's operation.
On receipt of the Complainant's annual leave request of 25 May 2016 the Respondents Operations Manager, to whom the Complainant reported, immediately reviewed the request. The Operations Manager called the Complainant at 9:20 am on 25 May to advise that, due to business and operational requirements, it would not be possible to grant his request in full. The Operations Manager advised the Complainant that she would have to decline the request for three hours leave on 27 May and would review the request for bold 1/2 June later that day.
Having further review the operational needs of the Respondent, the Operations Manager held a meeting with the Complainant at 12:00 noon on 25 May during which they discussed the leave request. The Operations Manager advised the Complainant that she would have to see how busy the week was to see whether they could accommodate his request for 1/2 June.
On the morning of 30 May 2016, having reviewed the Respondent's operational needs at that point in time, the Operations Manager contacted the Complainant by phone and advised that she could approve the annual leave request for 1 June. During this conversation the Complainant expressed his dissatisfaction with the Operations Manager's decision and stated that he wanted to take two days leave. He queried the Operations Manager as to who he could appeal her decision to. The Operations Manager reiterated that she could not facilitate two consecutive days leave at such a busy time of the year. However, the Operations Manager informed the Complainant that if he was still dissatisfied he could refer the matter to the General Manager.
The Complainant did not attend for work on 1 June as this had been approved by the Operations Manager as a days leave. On 2 June 2016 the Complainant telephoned the Operations Manager 8:26 AM and advised that he would not be at work that day as he was unwell.
At approximately 11:15 am on 2 June 2016 the Respondent's Managing Director witnessed the Complainant refereeing a football match at a nearby sporting facility. As the Managing Director was aware that the Complainant should have been at work that day, he reported the matter to the Operations Manager.
The Complainant was invited to a disciplinary hearing on 10 June 2016. During the hearing the Complainant confirmed that he had called in sick on the morning of 2 June but had refereed a football match later that morning. The Complainant confirmed that he did not have a sick certificate to cover his absence on that day but that he was sick and was suffering from stress.
On 14 June 2016 the Operations Manager wrote to the Complainant and advised him that, having reviewed the evidence, she found him guilty of misconduct and dishonesty in relation to the events of the morning of 2 June 2016 and, as he was on an active final written warning, she had no option but to terminate his employment with six weeks' pay in lieu of notice.
The Complainant exercised his right of appeal and an appeal meeting was held on 23 June 2016. The appeal was heard by the respondent's CEO. The outcome of the appeal process was that the Operations Manager's decision to dismiss the Complainant was upheld.
Summary of Complainant’s Case:
The Complainant submitted that he was unfairly dismissed from his position with the respondent due to a personality clash between him and the Respondent's General Manager. The Complainant stated in evidence that given the difficulties in his working relationship with the General Manager he felt there was no point in appealing the Operations Manager's decision not to approve his leave request for 2 June.
The Complainant contended that, in his view, the final written warning which had been applied following a previous unrelated event was unfair.
The Complainant also submitted that a Time in Lieu (TIL) practice existed whereby he could come to work at 9:30 am and then go to referee a match at 11:30 am, following which he would return to work. In further evidence to Complainant stated that he had only been refused leave to referee on three occasions in twelve years.
With regard to the request for leave on 1/2 June, the Complainant submitted that he had previously advised the former Operations Manager of his requirement to referee matches on those dates.
Summary of Respondent’s Case:
It was submitted on behalf of the Respondent by their legal representative that the Complainant held a position of responsibility within the organisation. Despite the operational needs at the time of the Complainant's leave request, the Respondent agreed to accommodate him by granting one of the two days requested.
This Respondent stated that notwithstanding this accommodation, the Complainant decided to call in sick on the day for which his request had not been approved, so that he could referee football match. The Respondent stated that it was their understanding that the Complainant received remuneration for refereeing the match.
The Respondent submitted that the Complainant's unauthorised absence from work and uncertified declaration of illness was in breach of his terms and conditions of employment. Furthermore, the Respondent contended that there was a breach of the implied terms of trust and confidence between the two parties and therefore submitted that the Complainant's dismissal was warranted and fair in all of the circumstances.
The Respondent submitted that, in reaching this decision, it was entitled to take into consideration the fact that the Complainant was on an active final written warning as a result of previous, unrelated disciplinary issue.
The Respondent further submitted that they followed fair and reasonable process in conducting the disciplinary procedures and that the Complainant had been treated fairly and accordance with good practice.
In conclusion, the Respondent submitted that in a context where the Complainant had admitted his dishonest conduct, they were justified in taking disciplinary action against him and, in all the circumstances the decision to dismiss was fair and worked.
Findings and Conclusions:
The facts of this case are not in dispute. The Complainant had applied for annual leave for 1 and 2 June 2016 and when his employer only approved the first of those two days, he called in sick on the second day and proceeded to referee a football match which he had been scheduled to do on that day.
I am satisfied from the evidence presented that the Operations Manager gave good and careful consideration of the Complainant's leave request and, clearly based on an assessment of the operational needs of the business at that time, approved one of the two requested.
When the Complainant informed the Operations Manager that he was dissatisfied with her decision, he was directed to raise the matter with the next line of management, the General Manager. However, based on his perceptions of difficulties that existed in his working relationship with the General Manager, the Complainant did not follow the normal grievance process.
Consequently, having taken the days leave that was approved by the Operations Manager, the Complainant called in sick on the second day. The evidence suggests that the Complainant was well enough to referee a football match and it is also noted that he was not in a position to provide medical certification to support his contention that he was unwell.
The Complainant was, at the time of this incident, on a final written warning arising out of the previous disciplinary process. It was clear from the evidence presented that the Complainant was dissatisfied with that decision and he sought to have this aspect also raised as part of his current complaint. Other than to confirm that the sanction in question was active at the time of the current disciplinary process, I had no jurisdiction to consider the earlier process. I am satisfied from the evidence presented at the Hearing that the Complainant was on an active final written warning at the time the incident, under consideration in this case, took place.
At a point in time when he was on a final written warning, the Complainant made a clear and deliberate decision to go referee football match on a day when his request for annual leave had been declined. This decision involved advising his employer that he was too unwell to attend work. However, his refereeing of a football match on that morning raises serious questions as to the validity of his contention that he was unwell.
I am fully satisfied that it was more than reasonable for the Respondent to consider the complainant's actions, in relation to his non-attendance at work on 2 June 2016, as gross misconduct, as a result of which the bond of trust, that is so important between employer and employee, has been completely sundered.
Consequently, taking all the above into consideration, I find it reasonable that the Respondent, having provided what was clearly a fair and procedurally sound disciplinary process, would conclude that they had no option but to consider dismissal as an appropriate sanction in this case.
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.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I am satisfied that the Respondent was justified in taking disciplinary action against the complainant and that the sanction imposed following that process was both fair and warranted in the circumstances.
Consequently, I find that to the Complainant's complaint of unfair dismissal is not upheld.
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Finally Written Warning
Unauthorised Sick Leave
Annual Leave Request refusal