ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014568
Parties:
| Complainant | Respondent |
Anonymised Parties | Driver | Warehouse & Distribution |
Representatives | Barnaba Dorda SIPTU, Stephen Nelson | Scott Jevons IBEC, Stephen Cunneen, Wayne Law, James Hoctor |
Complaint:
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-00019024-001 | 08/05/2018 |
Date of Adjudication Hearing: 05/11/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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.
Background:
The Complainant was employed as a Driver from 30th November 2015 to 23rd February 2018. He was paid €485.00 gross per week. He has claimed that he was unfairly dismissed and has sought compensation. |
Summary of Respondent’s Case:
The Respondent stated that the Complainant was on a final written warning and had received one-week unpaid suspension from work, for operating a vehicle without the use of tacograph between 9th January and 31st May 2017. The sanction was not appealed. The Complainant requested annual leave in October 2017 for 27th, 28th, 29th December 2017. This was verbally declined two days later by his line manager because it was the busiest time of the year. Two colleagues who had requested this time earlier had been facilitated. On 19th December the Complainant by way of a “reminder” informed his line manager that he would be on leave the next week. His line manager informed him that this leave was not approved. On 20th December his line manager issued him with a letter confirming that this leave was not authorised and if he proceeded to take it would be deemed unauthorised absence and may result in disciplinary action. He failed to attend on 27th, 28th and 29th December. He was called to a disciplinary hearing on 9th January 2018, he was accompanied by his trade union representative. He acknowledged that his line manager had verbally declined the request for annual leave and that he had received written confirmation of this. He was asked a number of times for the purchase dates of the flights and it was confirmed 9th November 2017. This was after the request was declined. On 9th February he was informed that the outcome was to uphold the allegation of misconduct and as he was on a final written warning, he was dismissed. He appealed the sanction of dismissal. In his appeal letter he admitted to receiving notice that the annual leave request was declined one week after he requested it. The appeal was held on 27th February and 20th March 2018. The sanction of dismissal was upheld. He had been advised in writing of the consequences of taking unauthorised leave and he proceeded to take it and did not engage with management, HR or his union. This dismissal resulted from the conduct of the Complainant. His terms and conditions state that “dates of annual leave must be approved in advance by your line manager”. His actions were gross misconduct and his behaviour undermined the trust and confidence that is essential to the maintenance of the relationship between employer and employee. They cited case law in support of their position. The dismissal was not unfair. This claim is rejected. |
Summary of Complainant’s Case:
The Complainant had been employed since 30th November 2015 and he was an experienced driver and very committed to his job. He had received a final written warning for operating a company vehicle without a tacograph. In late October he approached his manager and gave him a written request for holidays on 27th 28th and 29th December. In the past all his requests were accepted without direct or indirect communication from his manager, therefore he expected that in the absence of any further communication from his manager, he can use his leave entitlement for those three days. About two weeks after he made his request he booked flights to Poland between 23rd to 28th December 2017. A few days before his leave commenced he reminded his manager about it. To his surprise the manager told him that the leave was not approved. On the following day 21st he received a later from his manager which confirmed that the application was not approved and if he fails to attend work on those dates he will be deemed to be on unauthorised absence and that it may result in disciplinary action against him. (not up to including dismissal). He explained that he had bought expensive tickets and it would be difficult to change them also the company should have notified him earlier. He went to Poland on 23rd December 2017 and returned on 28th December 2017.On the evening of 28th he tried to contact his manager to advise of his availability for 29th to no avail. He contacted another manager who told him that there were sufficient employees to cover the work. He returned to work the next week until 9th February. On 4th January 2018 he was called to a disciplinary hearing in relation to this absence. This was conducted by his line manager JH. He was warned of the potential outcome of dismissal. He was asked for and provided flight purchase details. He was paid the days in dispute as holidays. On 9th February he was advised by JH that he was to be dismissed and given the right of appeal. The reasons for dismissal were somehow different to the allegations set out in the invitation. He appealed the sanction, but the dismissal was upheld. He referred the matter to the WRC.
The Respondent didn’t follow fair procedure and the sanction was disproportionate. The line manager JH who was directly involved in this matter carried out the disciplinary investigation. So he was the complainant, witness and judge in this case. This is wrong and unfair and renders the process unfair. The allegations were not exactly the same as those relied upon in the letter of dismissal. The Complainant followed the practice of waiting a couple of days after requesting holidays and then assumed that it was approved, this is the practice in the company. He was only told of the refusal on 21st December just two days before he was due to go on holidays. The Respondent alleged that the reason for the refusal was because it as the busiest time but when he returned to Ireland on 28th he was advised that they had sufficient workers for the 29th. He was paid for 27th 28th and 29th as holidays so it must have been approved for the office to pay. Given the above the dismissal was unreasonable and unwarranted/disproportionate.
He has sought compensation. He looked for work and in early April he found work with the same remuneration, a period of six weeks after his dismissal.
Findings and Conclusions:
I note the conflict of evidence in this matter. Substantive Matter I note the conflict of evidence regarding the operation of holiday requests. The Respondent asserts that they replied to the Complainant within two days whereas the Complainant asserted that it was up to 10 days and if there is a ‘silence’ from management it is taken as granted. I note that the Respondent rejected this. I note that the original request had been made in October and that the flights were booked on 9th November. I note that the line manager JH affirmed that he photocopied the written request and declined it within two days. I note that even when the line manager JH verbally stated that his request had been declined on 20th and in writing on 21st December the Complainant did not raise a grievance, didn’t go to HR, didn’t go to his union and didn’t kick up a fuss. I accept the Respondent’s position that they paid the three days in question in error and no significance should be attributed to this. I question why the Complainant reminded his line manager about the holidays, was he unsure? Was this a try on? On the balance of probability, I find that the Complainant requested holidays in October and they were declined. I find that the Complainant went ahead and booked holiday knowing that he had not approval. I find that he reminded the Respondent in a hope that he would be allowed to travel. I find that by not raising an immediate and serious grievance against the company on 20th or 21st December it suggests strongly to me that he knew that he hadn’t approval. I find that his actions constituted an act of gross misconduct to absent himself from work without permission knowing that there would be serious consequences. I find that the dismissal was substantively fair. Procedural matter I find that the Final Written Warning relied upon by the Respondent was in respect of a matter unrelated to the subject matter of this case. I note that the letter of dismissal stated “It has been further decided that these allegations, whilst not amounting to gross misconduct, these breaches are sufficiently serious to terminate your employment given previous warnings. I find therefore, that the Respondent has relied upon the final written warning to decide on the sanction of dismissal. I find that the allegations set out in the letter of invitation to the disciplinary hearing were not the exact same that were relied upon in the letter of dismissal. I find that the letter of invitation did not refer to the possibility of dismissal, it stated, “it may result in disciplinary action been taken against you”. I note that the Line Manager who was central to this dispute then became the disciplinary investigator and decision maker. I find that the principal of “Nemo iudex in causa sua”, referred to in the Complainant’s submission is very pertinent to this case. I find that it is not appropriate that the Line Manager should become the investigator and decision maker in a matter in which he had a personal involvement. I find that this breaches fair procedure. I find that the dismissal was procedurally unfair which has rendered the dismissal unfair. However, I find that the Complainant has contributed substantially to his dismissal. |
Decision:
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.
I have decided that the Complainant’s dismissal was substantively fair but procedurally unfair.
I have decided that the Complainant was unfairly dismissed but that he has contributed substantially to the dismissal.
I have decided that the Respondent should pay the Complainant €2,000 which reflects his contribution to his dismissal. This is to be paid within six weeks of the date below.
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Dated: 16th January 2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Unfair dismissal, procedural fairness. |