ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009250
| Complainant | Respondent |
Anonymised Parties | A Butcher | A Butcher’s shop |
Representatives |
| Norah Cashe from Penninsula Group Limited |
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-00012160-001 | 27/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00012160-002 | 27/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00012160-003 | 27/06/2017 |
Date of Adjudication Hearing: 08/12/17 and05/03/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In particular, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 27th of June 2017) issued within six months of his dismissal (5th of May 2017), I am satisfied that I have jurisdiction to hear the within matter
The Complainant has brought additional claims under the Payment of Wages Act 1991 concerning his Notice payments and the weekly amount payable to him. There is also a claim for Holiday entitlements under the Organisation of Working Time Act, 1997.
Background:
The Complainant herein is a highly skilled Butcher who commenced his employment with the Respondent Butcher’s Unit in a shopping centre in Dublin in 2008. The Complainant was dismissed from his employment by letter dated the 6th of May 2017 which was from a Ms. DP who is a senior member of staff (the financial officer) and who had conducted a Disciplinary hearing on the 28th of April. |
Summary of Complainant’s Case:
The Complainant believes that the Dismissal was unfair as it arose out of a sanction imposed on him at a time and in circumstances where there were live letters of warning on his file which he believes were unfairly imposed and imposed contrary to his right to fair procedures. The Complainant gave evidence on his own behalf. His evidence was tested in the ordinary way. |
Summary of Respondent’s Case:
The Respondent makes the case that the sanction of dismissal was lawfully imposed where the Complainant had acted in a wilful act of refusing to follow reasonable instruction. The level of sanction was predicated on the fact that there were already two levels of sanction on the Complainant’s file – a written warning and a final written warning. The Respondent defended it’s workplace processes and pointed to the fact of having obtained independent 3rd party assistance as being evidence of it’s bona fides. |
Findings and Conclusions:
I have carefully considered the evidence adduced over the course of two days of evidence. The Complainant herein is a skilled craft Butcher and was a valuable asset to the Respondent Employer’s team. The Respondent is owned and run by Mr. DP who indicated that the first seven or eight years of the Complainant’s employment was relatively incident free. The Complainant was trusted enough to open up the shop and was trusted to be the most senior member of staff in the event the DP was not present. In and around February 2016, the Complainant’s relationship with certain other members of staff began to show signs of being strained. The Complainant had a row with DM about a radio getting broken. After confronting DM on the issue, the Complainant reported that DM had used abusive language and threatened him. DM made counter-allegations. As it happens, DM was DP’s son and so it may not have been entirely satisfactory that DP investigated the complaint. Ultimately DP was not prepared to make any findings against either man but informally warned both of them that there is a dignity at work charter in operation in the workplace and that the type inappropriate interaction that had come to light in the course of this investigation was not to be repeated. This was communicated to the Complainant by letter dated the 23rd of February 2016. Within 2 months of that incident, the Complainant was again at the centre of some controversy in the workplace, this time for using abusive foul and derogatory language against a number of the women working in the Deli area of the Butcher shop. Complaints were made in and around the 14th of April 2016. Again Mr. DP dealt with this matter and concluded that the behaviour warranted a written warning. The Complainant was not happy with this outcome and believed that the process had been unfair and one-sided in the extreme. The written warning was dated the 30th of May. Ultimately, the Complainant sought to Appeal this 12 month written warning and notified his Employer of this fact on the 10th of June, 2016 – the letter of Appeal sets out comprehensive grounds which on their face appear valid. However, even before this process had been concluded, the Complainant was being complained about again. So, for example on the 8th of May he refused to cut meat for one of his female colleagues. More significantly on or about the 19th of May one of the Deli staff became concerned that the Complainant was monitoring and documenting her every move in a way that she found to be oppressive and unacceptable. The Complainant did not deny this action and appears to have been monitoring and logging Ms. McG for the express purpose of seeing how much time she was actually working as against the time she was spending avoiding work. Ms. McG complained to her own manager Ms. W, and when Ms W spoke to the Complainant about this unacceptable behaviour she felt he became aggressive with her. DP had a conversation with the Complainant on the 20th of May regarding these issues and suspended the Complainant as “a holding measure” and moved to investigate this matter. DP in his evidence indicated that under pressure from the Complainant he opted to engage a third party at this time. The Complainant had specifically requested that he engage the services of the Workplace Relations Commission but DP opted instead to go with an independent business consultant - BP. BP met with the Complainant at the end of June 2016 and on foot of his Disciplinary process BP issued a final written warning. BP found that the Complainant was purporting to micro manage his colleague in an inappropriate way and that if he had had any issue with work output this should have been brought to the attention of Ms. W who was in charge of the shop that day. BP acknowledged that the Complainant’s attitude and actions were intimidating and demeaning to Ms. McG. Of importance is the fact that BP had no option other than to impose a final written warning in circumstances where there was a live written warning already on file. This was delivered on the 10th of August 2016. It is understandable that the severity of the sanction meant that the Complainant sought to Appeal this outcome and an Appeal was lodged on the 17th of August. At this stage the Complainant had two warnings on file with two Appeals pending. Despite this, complaints were still being made by staff members about the Complainant’s attitude towards them and general refusal to co-operate and/or be pleasant. On the 13th of August 2016, a serious flare up arose in the workplace whereby DP physically escorted the Complainant off the premises. There can be no doubt that by now the relationship between Employer and Employee was in a serious state of disrepair. I do not accept that DP’s behaviour was appropriate or proportionate but I recognise that the Complainant was needling his Employer. The outcome of this interaction is that the Gardai were called to the premises though there was no charge of Assault brought and I must accept that the Gardai were satisfied that there was no reason to bring any such charges. It is hard to see how any normal working relationship could be restored after such an incident, and yet the Complainant remained in the workplace and there followed a period of time where PD and the Complainant appear to exchange antagonistic correspondence. PD continued to get complaints from staff members concerning the Complainant’s behaviour and constant failure to carry out duties so as to assist fellow workers. On the 3rd of November 2016, the Complainant got into a row with a co-employee concerning his refusal to adhere to Health and Safety standards and in particular refusing to assist in avoiding cross contamination of foods. The Complainant was suspended for a week without pay by DP by letter dated that day. There was an unexplained delay on the part of DP in engaging the company GR for the purpose of conducting an independent Appeal process. It was only in February of 2017 that the Complainant was notified that the Appeal process was moving forward and the Complainant was asked to attend a meeting at the Offices of GR on the East Wall at 11am on the 27th of March 2017. I find as a matter of fact that the Complainant knew he was expected in work on the morning of the 27th of March 2017 and that he would be given the time off to attend the meeting arranged and would be expected to return to the workplace later that day. The Complainant did turn up for work at the normal time of 8am on the 27th of March 2017. The Complainant opted to leave the workplace at 8.10am although he was specifically instructed by DP not to leave until closer to 10am. I have to find that the Complainant knew that he was refusing to follow his Employer’s instructions and that his action was intentionally provocative given the strained relationship that then existed between the parties. I would have to reject the argument that the journey to East Wall would take longer than an hour and, in any event, even if the Complainant had turned up late to the scheduled meeting it was his Employer’s loss not his. The Company GR was being paid for by the Respondent company after all. For the Respondent DP, this act of wilfulness on the part of the Complainant was an act of defiance and a failure to follow a reasonable workplace instruction. It triggered a Disciplinary process. The Disciplinary process was handled by Ms. DP (the Respondent Employer’s wife and the financial Officer within the company). A hearing was conducted on the 28th of April 2017 and the letter terminating the employment issued on the 6th of May 2017. There can be no doubt that the outcome of this Disciplinary process being the termination of the employment was by reason of the fact that this was the third incident warranting a disciplinary sanction. There was already a live written warning and final written warning on the file. I accept and understand that both of the previous sanctions were under Appeal but would accept that until such time as they were overturned and/or otherwise dealt with, they were live sanctions on the Complainant’s file. In his evidence and throughout the employment, the Complainant demonstrated a robust understanding of workplace processes. He knew or ought to have known that his deliberate disregard for his Employer’s instruction on the 27th of March could result in a Disciplinary process – the unavoidable outcome of which was the possible imposition of the next level of sanction i.e. Dismissal. I find in the circumstances that the Dismissal was not Unfair. The Complainant was dismissed for insubordinate conduct. I have some sympathy for the Complainant. There was a concentrated and steady stream of complaint being made about him and which only started after 8 uneventful years of employment. The complaints had a cumulative effect and the Employer was bound to address them. I sense that the Complainant became increasingly obdurate and the relationship which was strained was exacerbated by the incident on the 13th of August 2016. I note that the company GR completed the Appeal process at the start of May 2017, but find that the outcome of this process (the upholding of the sanctions) had no bearing on Ms.DP’s decision to dismiss either way. The only relevant fact is the fact that there were two live warnings on the personnel file on the date that the Complainant left the workplace without his Employer’s permission. I heard evidence in relation to the Payment of Wages claim and accept that the issue of Notice has been withdrawn as payment was made. I also heard evidence in relation to the claim under the Organisation of Working Time Act 1997 and find that there were no Annual leave days owed to the complainant at the end of his employment.
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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 and 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 claim under the Payment of Wages Act, 1991 was withdrawn. The claim under the Organisation of working Time Act, 1997 fails. The claim under the Unfair Dismissals Act 1977 Act fails. |
Dated: 16th July 2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Key Words:
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