ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006719
30.03.2107
| Complainant | Respondent |
Anonymised Parties | A Worker | A Manufacturing Plant |
26.05.2017
| Complainant | Respondent |
Anonymised Parties | A Worker | A Manufacturing Plant |
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-00009129-001 | 17/01/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00010526-001 | 30/03/2017 |
Date of Adjudication Hearing: 26/05/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Both parties submitted a number of EAT determinations post hearing in support of their respective submissions
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 11 of the Minimum Notice and Terms of Employment Act 1973 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).
Summary of Respondent’s Case:
This manufacturing company operates a 7 day week production plant and is a member of an international group of companies. The claimant commenced employment as a production controller in 2006 and it was submitted that he was fairly dismissed in November 2016. The claimant was on night duty on the 8th.June 2016 , finished at 8.00a.m. and called to see the Production Manager that morning – he submitted a medical cert to say that he would be off sick with back problems from the 9-23rd.June.It was contended that the claimant told the manager that he was going to have physiotherapy for 2 weeks as his back condition was deteriorating. The HR manager contacted the claimant by phone on the 16th.June – his phone rang out with an international dial tone. The HR manager asked him to attend a medical on the 17th.June but the claimant refused saying that he would not attend any appointment until the 24th.June.The claimant advised the HR manager that he was in the country. A registered letter was sent to the claimant on the 17th.June asking him to meet with the production manager on the 21st.June – it was submitted that the letter was not collected from the post office until the 23rd.June.The claimant was invited to attend a meeting with the production manager on the 28th.June – it was submitted that he did not say that he was out of the country and said that he had not collected the registered letter as he was “ on strong medication”. The claimant was requested to provide evidence of his physio appointments and a fitness to return to work certificate. At a later meeting on the 1st.July the claimant presented certs from a physio he had attended in Poland and told the production manager that it was none of his business if he was out of the country and he did not need to inform the company of same. He presented a cert from his Irish GP stating that he was off sick for a further 2 weeks owing to stress. He stated that he would not attend any meetings at this time. The claimant was invited to 4 meetings during July and refused to attend on all occasions. The claimant attended a meeting on the 20th.July – he was asked to provide booking dates for his flights to Poland and a translated version of his physio certs. It was submitted that the claimant’s account of his exchanges with his GP were inconsistent – he told the GP on the 8th.June that he could not get physio appointments in Ireland and travelled to Poland to receive treatment – it was asserted that this did not tally with the fact that he had booked his flight to travel in March – some 3 months earlier. The respondent set out the timeline for an ensuing investigation and disciplinary process. It was submitted that at the disciplinary hearing the claimant accepted that he had booked flights to Poland in March , that he accepted that he only attended his GP for a cert on the 9th.June and that that he had not informed the company of his planned trip to Poland .The claimant was dismissed for gross misconduct “ as the claimant’s behaviour amounted to a fundamental breach of the trust and confidence necessary for the employment relationship to continue” .The claimant appealed the dismissal but the decision to dismiss was upheld. The respondent explained the company sick leave scheme – 20 days paid sick leave in a calendar year – the handbook states that where possible medical/dental appointments should be made outside of working hours. Where this is not possible time off may be granted at the discretion of a supervisor. The policy provides for the respondent seeking permission from an employee to contact their doctor and to request an employee to go for an independent medical. The disciplinary policy classifies continued refusal to carry out legitimate instructions as gross misconduct rendering an employee liable to summary dismissal. It was submitted that the respondent found the claimant’s answers at the investigation stage to be dishonest and found that the claimant had refused to comply with a legitimate instruction to attend a meeting and medical examination while on paid sick leave. This it was submitted represented a fundamental breach of trust. It was submitted that at the appeal hearing the claimant confirmed he understood the provisions of the sick pay scheme – it was submitted that he had been given an opportunity at the appeal hearing to explain why he had refused to attend meetings requested by management while on paid sick leave. It was submitted that in these circumstances the dismissal was justified and his complaint must fail. The production manager Mr.B , the HR manager Ms.MCLB and the MD Mr.R gave evidence on behalf of the respondent and set out their respective accounts of their exchanges and meetings with the claimant.
The HR manager in her evidence asserted that the claimant would not engage with her and that he dismissed everything she said. She stated that she had considered a penalty less than dismissal - she contended that the claimant accepted no sense of wrong doing. The HR manager was unclear when challenged about the decision to suspend the claimant without pay and suggested that this had been an administrative error. She acknowledged she had no notes of her consideration of a lesser sanction and stated that she had thought about a written warning. She acknowledged that the invitation to attend the disciplinary hearing did not state that it was a disciplinary meeting and that her pre meeting notes included “ Gross Insubordination” at the top of the first page.I note in the HR manager’s own record of the disciplinary meeting on the 15th.Sept.2016 she states as follows : She “confirmed that the claimant had ben suspended without pay and that this is pending the outcome of the investigation”. She was unable to give a convincing response to the challenge to her under cross examination that the reference to gross insubordination in her pre meeting notes for the disciplinary hearing were indicative of a predetermined outcome to the disciplinary process. Under cross examination the MD was asked if he had put the claimant’s previous sick leave record to the claimant during the appeal – he replied that he had been exploring mitigating circumstances.It was asserted that the MD had formed a view in relation to the claimant’s pattern of absences without having put the matter to the claimant for a response. The MD asserted that all aspects had been considered when considering the matter of sanctions to apply .No documentary evidence of such considerations was proffered. It was submitted that the claimant had failed to adhere to the sick leave procedure , that he had made a premeditiative booking for treatment in Poland without informing the company , that he made up a story at the initial investigation , purposefully trying to avoid the truth. It was submitted that the company sick leave scheme was over and above the statutory requirements and that any procedural flaws could not detract from the substantive matter of the claimant’s conduct. The respondent asserted that the claimant had no entitlement to notice in circumstances where his dismissal was fair.
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Summary of Complainant’s Case:
It was submitted that the claimant was unfairly dismissed , that fair procedures were not applied and that he was not afforded his rights under natural justice. It was advanced that the claimant was sanctioned through being suspended without pay for over 3 months , that the process was biased and predetermined and that the sanction of dismissal was disproportionate. It was contended that no other sanction had been considered and that the claimant’s absence history should have been put to the claimant as it had featured in the consideration of the appeals officer. In his evidence , the claimant asserted that he had had a 100% attendance record for most of his employment up to the time he incurred an injury in a car accident some 5 years ago.This involved him engaging on an ongoing basis with his GP, physio and orthopaedic consultant in Sligo.Ultimately he had successful back surgery in Poland in Nov. 2016 – an MRI had revealed a bulging disc which was deteriorating over time. The claimant stated that at his first meeting with the respondent when he returned from leave on the 23rd.June 2016, he felt the company had given up on him and that they were calling him a liar. He asserted that he was in a very bad mental state as a result of that encounter and that he felt harassed at a meeting on the 1st.July 2016.He contended that he was unaware that he was attending a disciplinary meeting on the 1st.Sept. 2016. The claimant confirmed that when he booked his flight to Poland in March he did not think of telling anyone from the company of his plans. He stated that he found it unnecessary to tell anyone. He asserted that he told the production manager that he would be out for 2 weeks .He confirmed that he accepted now that the company had a right to know. He did not accept that he was hostile and aggressive with the respondent’s managers. He accepted that his assertion that he was unable to pick up the letter from the post office was not the truth. The claimant stated that he had no power to challenge the meetings that had taken place and contended that he never used the words “ none of your business” to his manager. It was put to the claimant that he was aware of the provisions of the Sick Pay Scheme and that he knew that because physiotherapy was an elective treatment he would not be paid for it and that was why he did not disclose his plans to the respondent. The claimant denied this and asserted that the reason he did not disclose his arrangements regarding physio treatment in Poland at the first meeting with Mr.B was because he had called him a liar. The claimant’s representative submitted that the entire process was flawed from the outset and that the sanction of dismissal was disproprtionate in the circumstances.It was submitted that the respondent was in breach of the Minimum Notice & Term of Employment Act 1973 for failing to pay him his statutory entitlement to 6 weeks notice. |
Decision:
Section 41 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 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.
to the dispute.
I have reviewed the evidence presented at the hearings and considered the voluminous submissions as well as the authorities invoked by the parties. It is clear that from the outset the respondent confused the investigatory and disciplinary process as they described the first meeting with the claimant on the 28th.June 2016 as “ a disciplinary investigation”. It is evident from the Company procedures that they contain no provision for unpaid suspension except in the context of an alternative sanction to dismissal and the respondent was unable to put forward compelling evidence to justify the unpaid suspension of the claimant .The evidence of the HR manager that this constituted an administrative error was unconvincing and was in conflict with the respondent’s own documentation submitted into evidence. I am satisfied that there were numerous procedural deficits in the process and I accept the contention of the claimant’s representative that the company failed to adhere to their own procedures on the matter of suspension ; that the investigatory/disciplinary process was confused; that the investigator clearly formed a view on the matter of the appropriate sanction in advance of the initiation of the disciplinary process; that this view was communicated to the HR manager as evidenced by her own pre meeting notes; that no compelling reason was advanced for the attendance at the disciplinary meeting by the investigator ; that the claimant was not properly notified of the disciplinary hearing and the potential consequences of same when he was invited to attend on the 1st.Sept.2016 ; that no compelling evidence was advanced to demonstrate that the HR manager or the MD considered alternative sanctions to dismissal and the considerations by the MD of the claimant’s previous absences were not put to the claimant at the appeals meeting.I further find that the respondent acted unreasonably in failing to take account of the claimant’s length of service – for which there is provision in the company procedures and in failing to take account of the fact that the claimant’s illness was genuine .On the basis of the forgoing , I have concluded that the sanction of dismissal was disproportionate and that the claimant was unfairly dismissed . Notwithstanding this , I accept the contention by the respondent’s representative that the claimant was in breach of the company sick pay procedures , that he should have disclosed that he was going to Poland to receive medical treatment from the outset and that on the balance of probabilities he understood that the physio treatment as an elective treatment would not come within the ambit of the paid sick leave scheme .I further accept that arising from said actions, the claimant breached the duty of trust with his employer and consequently I find that he contributed significantly to his own dismissal and I am taking this into account in the remedy set out below. In all of the circumstances I am upholding the complaint of unfair dismissal and require the respondent to pay the claimant €17,500 compensation. In light of the foregoing finding I am upholding the complaint of a breach of the Minimum Notice and Terms of Employment Act 1973 and require that the respondent pay the claimant 6 weeks notice. |
Dated: 1.11.2017