ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013234
Aishlng McDevitt IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing:24/07/2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant was employed as a process operator by the respondent commencing employment in August 2002. The complainant was employed on a full-time basis as a process operator and earned €40,800 per annum gross. The employment terminated on 25 August 2017.
Summary of Complainant’s Case:
The complainant had been on paid suspension for a number of weeks and attended a meeting to discuss a disciplinary report on 14 August 2017.
At that meeting the complainant was informed that he would receive a final written warning and would be required to sign a document agreeing to certain conditions in order to return to work.
The complainant attended a return to work meeting but refused to sign the document as he had queries in relation to changes in his shift and concerns regarding the shift supervisor.
He requested that the manager inform the HR Dept. of these matters and then left the premises.
The complainant then received a letter from the respondent terminating his employment.
The complainant did not receive any payment in lieu of notice.
Summary of Respondent’s Case:
The complainant was not dismissed but walked out of a meeting after refusing to sign an agreement that he had previously consented to sign.
The agreement document arose from a disciplinary investigation which could have resulted in dismissal but which had instead decided on a lesser sanction plus an agreement by the complainant to abide by reasonable conditions.
The complainant did not contact the company or make himself available for work as a result of which the respondent had no option but to assume that the complainant had left his employment.
The complainant did not avail of the appeal process even though the respondent extended the time limit for so doing.
Findings and Conclusions:
Complaint No. CA-17416-001
The respondent argued that the complainant walked out of a meeting on 17 August 2018, that he absented himself from work without permission, that he failed to contact the respondent to clarify his position and failed to engage with an appeal process regarding the previously accepted disciplinary sanction. In the circumstances the respondent had to presume that the complainant was unwilling to continue his employment and wrote to the complainant accordingly. Some weeks later the complainant’s union contacted the respondent enquiring about arrangements for an appeal of the dismissal and, despite it being outside the time limit for same, the respondent indicated that they would facilitate an appeal hearing. Nothing further was received from the complainant in this regard. The respondent contended therefore that as no dismissal had occurred the adjudication officer had no jurisdiction to hear the complaint.
The background to these matters is that the complainant was suspended with pay on 30 May 2017 when he was informed that an investigation would take place into allegations made by the complainant against a number of colleagues (including two supervisors), his interactions with those colleagues, his behaviour towards management and his absence record. The investigation, conducted by a HR Manager, extended over a number of weeks. The conclusion of the report was that the complainant was guilty of conduct which could be classed as gross misconduct warranting dismissal but that the HR Manager was prepared to recommend a lesser sanction of a final written warning and agreement in writing to abide by a set of conditions regarding work performance, attendance and interaction with colleagues. A copy of the report was sent to the complainant on 20 July 2017.
A meeting was arranged to discuss the report on 14 August 2017 at which the complainant was accompanied by a union colleague of his choice. The report was gone through in detail and the result of the meeting was that the complainant accepted the recommendations regarding the disciplinary sanction and the signing of a set of conditions as outlined in the report’s conclusion. The complainant stated at the adjudication hearing that he agreed to these proposals in order to get out of the meeting. It was arranged that the complainant would return to work on 17 August and would report to the Operations Manager prior to going on the shop-floor.
The complainant met with the Operations Manager on 17 August and was requested to sign a letter confirming acceptance of the sanction and the listed work performance conditions. The complainant, in evidence to the adjudication hearing, stated that he had concerns in relation to a change in his shift and being assigned to a supervisor whom he knew did not want him. He requested that the Operations Manager convey these concerns to the HR Dept. and to respond to him in that regard and was assured that this would occur. He refused to sign the document. He then left the meeting but got no response from the company until he received a letter dated 25 August informing him that he had been dismissed. The Operations Manager for his part stated that his understanding was that the complainant had accepted the proposed outcome of the report and that he would sign the letter to that effect at the meeting of 17 August and resume work. The complainant, however, refused to sign the document. The Manager did not recall any discussion about a shift change or being requested to get the HR Dept. to contact the complainant. The Manager stated that he told the complainant that the HR Dept. would have to be informed of his refusal to sign the letter. The complainant left the meeting and the premises and the Operations Manager reported to HR that the complainant had refused to sign the letter.
On 25 August 2017 the Site Director wrote to the complainant referring to the sequence of events and to his stated refusal at the meeting of 17 August not to sign the letter. The letter then stated:
“Unfortunately, I must now conclude that you are unwilling to return to work at (name of company), commit to the behaviours required from all employees and commit to a process of reconciliation with employees whom you have had differences with in the past.
On this basis I am left with no alternative but to terminate your contract with (company) from 25th August 2017.”
The letter ended with a request to the complainant to arrange for the collection of personal effects and the return of company property.
The complainant, in evidence to the adjudication hearing, said that he understood from this letter that he had been dismissed. He also stated that he then contacted his union in relation to an appeal but that he had not heard anything further in this regard and did not contact them again. The evidence of the respondent is that the union had contacted the company regarding an appeal a few weeks later and had been informed of the company’s position that the complainant had left his employment but that an appeal hearing would be facilitated. No further contact was received from the union in this regard.
On 25 September 2017 the complainant wrote to the respondent referring to the letter of 25 August and asking why he had been dismissed. He also requested a copy of his terms of employment and advice as to how to appeal the decision to dismiss him.
The respondent replied by way of letter from a Group HR Manager dated 29 September 2017. The letter commenced by stating that the company did not dismiss the complainant. It then goes through the sequence of events leading to the meeting of 17 August. It then states:
“We advised (named union official) on the 24th August that we had no other option at this stage but to advise you that we had to terminate your employment as you were no longer making yourself available to work at (company).”
The letter went on to reference the contact from the union in regard to an appeal but stated that, as no further contact had been received from either the union or the complainant in this regard and because the vacancy had since been filled, the company now considered the matter closed.
There was also evidence from the respondent regarding contact made by the complainant in early September in respect of his pension options.
There is almost a complete divergence in the accounts of what occurred at the meeting between the complainant and the Operations Manager on 17 August 2017 and at which there were no witnesses and no minutes kept. On one issue there is agreement and that is that the complainant refused to sign the letter that had been discussed with him and which he had previously agreed to sign. According to the respondent that is all that occurred and the complainant then left the premises. The complainant was adamant that he had raised issues regarding a shift change and understood that these concerns would be advised to the HR Dept. and that he would await contact in that regard.
Having reviewed all the documentation and submissions I find no evidence that the complainant tendered a resignation. The respondent’s argument is, that by refusing to sign the letter accepting the final written warning together with the conditions as to his future behaviour and then leaving the premises and not making contact, the respondent presumed that the complainant was unwilling to return to work and the complainant had thus terminated his contract of employment. Just over one week elapsed between the meeting of 17 August and the respondent sending the letter of 25 August. The language of that letter, particularly the passage quoted above leave me in no doubt but that the respondent terminated the employment of the complainant on the grounds of him not making himself available for work and accepting the conditions attached to that return. The grounds of the complainant no longer making himself available for work are repeated in the letter of 29 September. On the preliminary issue therefore, I find that the complainant’s employment was terminated by the respondent with effect from 25 August 2017 by way of dismissal.
Section 6(1) of the Unfair Dismissals Act, 1977, 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.
It is clear that the respondent did not attempt to contact the complainant between the meeting of the 17 August 2017 and the sending of the termination letter on 25 August 2017. The respondent was dealing with an employee of 15 years’ service and took this decision after just one week’s absence. The Site Director who wrote that letter said that he had been informed of the complainant’s refusal to sign the letter agreeing to the sanction and commitments as to future behaviour and following the complainant’s non-attendance at work assumed that he had left the company. However, no process was put in place to ensure that this presumption was the correct one. Actions should have been initiated by the respondent to communicate with the complainant, advise of the serious consequences of failure to attend work / sign the letter and attempts made to arrange a meeting in this regard. The decision to terminate the complainant’s employment on the grounds of failure to commit to standards of behaviour / non-attendance at work was implemented without due process being followed. I might also point out that I have strong reservations about the investigation manager also deciding on the penalties to be applied to the complainant. There should be a clear distinction between an investigation (which is a fact-finding exercise) and any disciplinary process which should commence with a blank sheet as regards the imposition of sanctions. It would appear, however, that the opportunity was seized to end the employment of a person that the respondent considered, from experience, to be a troublesome employee.
The complainant, for his part, has a degree of responsibility for the situation that occurred. He was issued with a copy of the report on 20 July which contained the conclusion / recommendation in respect both of the proposed disciplinary sanction and the wording of the undertaking as to his future conduct that the respondent stated was required of him. There was plenty of time for the complainant to study this report before being summoned to the meeting of 14 August at which meeting the report was gone through in detail. If there were issues in relation to the report or in regard to his return to work then this was the opportunity to raise them. Instead, by his own admission, the complainant agreed to the proposals contained in the conclusion of the report in order to get out of the meeting. It would appear, however, that the complainant did not intend to accept these proposals but did not admit to this at the meeting held to discuss the matter. The respondent has argued that the option was there for the complainant to appeal the outcome of the report and to work under protest whilst an appeal was being processed. There was no mention of this option in the report but the respondent’s disciplinary procedures allow for a disciplinary sanction to be appealed. I have reservations in respect of the complainant’s approach to the initiation of an appeal. He contacted his union who, in turn, contacted the respondent regarding this matter but the complainant appears not to have followed up this issue. Ultimately, there is no doubt but that the complainant’s behaviour in these matters contributed to the decision to terminate his employment.
In summary therefore, I find that the complainant was dismissed by the respondent and that the decision to dismiss was implemented without regard for due process and was therefore an unfair dismissal. I also find that by his actions the complainant contributed to the decision to dismiss.
Section 7 of the Act deals with the entitlement to redress in the event of an unfair dismissal. The complainant, when asked about his preference in this regard said that his preference was for reinstatement and also stated that he had not been actively seeking alternative employment. The option preferred by the respondent was for compensation as the complainant had been replaced. Taking all matters into consideration I believe the most appropriate option in this case is compensation.
Section 7(2) of the Act states:
Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to –
(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
(b) the extent (if any) to which the said financial loss was attributable to an act, omission or conduct by or on behalf of the employee,
(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid
(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,
(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and
(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.
As stated above I find the dismissal unfair due to lack of due process and procedure. I find that the actions of the complainant contributed significantly to that dismissal and I find that the complainant made little effort to mitigate his loss.
Complaint No. CA17422-001:
The complainant stated that he was dismissed with immediate effect on 25 August 2017 and that, as a consequence, he did not receive any payments due to him under the Minimum Notice and Terms of Employment Act, 1973. This was not disputed by the respondent who relied on the defence that the complainant resigned or that alternatively the complainant’s actions were significant enough to warrant dismissal. Having found that the complainant was unfairly dismissed it follows that the claim for payment of Minimum Notice succeeds.
The complainant commenced employment with the respondent on 22 August 2002 and it was terminated on 25 August 2017. The complainant therefore had service in excess of 15 years.
Section 4 of the Act states:
(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(2) (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.
The complainant is therefore entitled to eight weeks pay.
Section 41 of the Workplace Relations Act, 2015, requires that I make a decision in relation to the complaint in accordance with the relevant 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.
Complaint No. CA-00017416-001:
This is a complaint under the Unfair Dismissals Acts, 1977 –2015. For the reasons stated above I find that the complainant was unfairly dismissed in accordance with the provisions of the Act. I have taken into account all of the factors relevant to this matter and I order the respondent to pay to the complainant the sum of €8,200.00 as compensation in that regard.
Complaint No. CA-00017422-001:
This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. As stated above I find that the complaint is well founded and I order the respondent to pay to the complainant the sum of €6,276.96 (€784.62 x 8).
Dated: 19th September, 2018
Workplace Relations Commission Adjudication Officer:Joe Donnelly