ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00014994
A General Operative
A Specialist Machinery Company
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 the Industrial Relations Acts
Date of Adjudication Hearing: 01/08/2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969 and following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
The Complainant commenced employment with the Respondent, a Specialist Machinery company, on 22 August 2017, in a General Operative role. On 25 October 2017, the Complainant was registered on a Statutory Apprenticeship and commenced a Bachelor of Engineering (Manufacturing Engineering) course, with the first off-site module commencing 11 January 2018. The Complainant returned to the workplace 26 March 2018.
By way of letter dated 9 April 2018, the Respondent informed the Complainant that he had been dismissed with effect from 6 April 2018. A subsequent Appeal Hearing, held on 20 April 2018, upheld the original decision to dismiss.
The Complainant submitted a complaint to the Workplace Relations Commission on 30 May 2018. On the basis that the Complainant had less than 12 months service with the Respondent at the time of his dismissal, his complaint was registered as a claim for unfair dismissal, to be heard under the Industrial Relations Acts.
An Oral Hearing was scheduled for 10 April 2019, to hear the Complainant’s complaint. During the course of this Hearing, an issue arose in relation to the legislation under which the Complainant’s complaint was before the WRC. The Complainant’s legal representative maintained that his complaint was on foot of the Unfair Dismissals Act and not the Industrial Relations Act, under which it had been registered by the WRC. The Respondent objected on the basis that they were on notice of a complaint under the Industrial Relations Act and were not in a position to defend a complaint under any other legislation.
The Hearing was adjourned to allow the Complainant to make legal submission in support of his position that the complaint should be heard under the Unfair Dismissals Act. Submissions were duly made on behalf of the Complainant and the Respondent was duly provided with the opportunity to respond to these submissions.
Citing Sections 1, 2(1)(a) and 4 of the Unfair Dismissal Act 1977 and Industrial Training (Engineering Industry) Order 1969, Schedule 1 (S.I. No: 40/1969), it was submitted on behalf of the Complainant that as he was employed under a statutory apprenticeship, he was entitled to the benefit of the 1977 Act as he falls within the exception as set out in Section 4 of the Act. It was further submitted, on behalf of the Complainant, that the fact the WRC Online Complaint Form is deficient in providing for the full legislative provisions in which relief may be granted, cannot be allowed to prejudice the Complainant and prevent access to justice in accordance with the principles of natural justice.
Having carefully considered the submissions made by and on behalf of both the Complainant and the Respondent, I concluded that, on the basis of Sections 2(1)(a) and 4 of the 1977 Act, taken in combination with the technical/administrative issues pertaining to the WRC Online Complaint submission process, as they applied in this case, the Complainant’s substantive complaint could be heard under the Unfair Dismissal Act, 1977. On that basis, a rescheduled hearing took place on 1 August 2019, to hear the Complainant’s substantive complaint.
The technical changes required to the complaint submission process, in order to facilitate the hearing of the Complainant’s under the Unfair Dismissal Act, were such that the original complaint under the Industrial Relations Act (CA-00019493-001) and the complaint under the Unfair Dismissal Act (CA-00027826-001) where both live at the commencement of the rescheduled hearing on 1 August 2019.
At the commencement of the Hearing, the representative for the Respondent stated their objection to the decision to allow the Complainant’s complaint to be heard under the Unfair Dismissal’s Act. According to the Respondent, as this did not pertain to an administration error, an Adjudication Officer did not have the authority to change the act under which the case was to be heard. However, the Respondent’s representative stated that they respected the decision and were willing to proceed.
However, it was then submitted by the Respondent that, as the Complainant’s claim now stood under two different Acts, one claim would have to be withdrawn before the matter would proceed. With the Complainant’s legal representative initially unwilling to nominate which claim to withdraw, significant exchange of positions and submissions were heard from both parties on the matter.
On the basis that (a) it was the Complainant’s original contention that his case should be heard under the Unfair Dismissal Act, a contention which was confirmed in the legal submissions presented following the first Hearing, (b) I had already issued a decision in this regard and (c) in the context of the Respondent being willing to proceed once one claim was withdrawn, it was decided to proceed on the basis that Unfair Dismissal Act (CA-00027826-001) would be heard and the Industrial Relations Act (CA-00019493-001) would be dismissed.
On that basis, the hearing proceeded to hear the Complainant’s claim of unfair dismissal.
Summary of Complainant’s Case:
It was submitted on behalf of the Complainant, that he was called to a meeting, on 6 April 2018, by management representatives of the Respondent (Ms A the HR Manager and Mr B an Assembly Supervisor). According to submission on his behalf, the Complainant was advised that the purpose of this meeting was a six-month review and he was not informed that the meeting was disciplinary in nature.
According to the Complainant’s submission, at the meeting, he was furnished with documentation detailing purported unauthorised absences, uncertified sick days, certified six days and late clocking times. The Complainant submitted that he pointed out certain inaccuracies in the documentation to the Respondent’s representatives. It was further submitted that the Complainant drew attention to the reliance on late In times, 40% of which were under five minutes late, and requested the clock out times in order to demonstrate any time lost was made up before departure on the days in question.
The Complainant submitted that Ms A then indicated to the Complainant that a decision would be made regarding the continuation of his employment. According to the Complainant’s evidence, Ms A and Mr B left the meeting to consult before returning to advise him that a decision had been made to terminate his employment. The Complainant stated that he was also informed that the Respondent would be discontinuing his college enrolment, for which he would have to make provision himself. It was further stated on behalf of the Complainant that Ms A confirmed that, to ground the decision to dismiss, she was placing reliance on the fact that the Complainant did not relocate close to the Respondents location, on commencing employment.
According to the Complainant, on receipt of confirmation of the dismissal, in a letter dated 9 April 2018, he informed the Respondent, by way of letter dated 10 April 2018, of his intention to appeal the decision. The Complainant submitted that an appeal hearing, conducted by the Respondent’s General Manager (Mr C), took place on 20 April 2018, following which, by way of letter dated 23 April 2018, the Complainant was informed that Ms A’s decision to dismiss was upheld.
Submissions in relation to substantive claim:
The Complainant submitted that he was not advised of the nature of the meeting on 6 April 2018 and, as a result, was not afforded a reasonable opportunity to consider whether to request the attendance of a third party at the meeting, in accordance with the Respondent’s disciplinary procedures.
The Complainant also submitted that he was misled as to the nature of the meeting in that he was told is related to a six-month review and that this created the reasonable expectation that the meeting was merely an informal review.
The Complainant’s submission made reference to the Respondent’s Disciplinary Procedures and, in particular, the stages of the process, which range from verbal warning, followed by first written warning, final written warning and thereafter dismissal. It was submitted that, at no point, was the Complainant given any indication by the Respondent that there were any issues with regard to job performance, personal conduct, attendance or other work-related activity nor was he advised of action required to correct the fault pursuant to the procedure under Stage 1 – Verbal Warning, as set out in the Disciplinary Procedure.
According to the Complainant’s submission, the correspondence of 9 April 2018, which confirmed the decision to dismiss, is constructed in such a way as to lead the reader to believe that the Respondent approached the meeting with an open mind by allowing the Complainant respond to the concerns raised and, thereafter, made a decision to dismiss. However, it was submitted that, in reality, the opposite was the case, as the failure to afford the Complainant with an opportunity to improve or mend his hand, in relation to the issues raised, demonstrated that the Respondent approached the matter with a closed mind.
It was further submitted on behalf of the Complainant, that the minutes of the Appeal Hearing, which took place on 20 April 2018, confirm the basis of the decision to dismiss was the failure of the Complainant to relocate closer to the Respondent’s business.
In concluding the submission on behalf of the Complainant, his legal representative made the following points:
1. The Respondent admits that the reason for dismissal was by virtue of the failure of the Complainant to relocate on commencement of his employment, which was at no time a term of his Contract of employment.
2. The Respondent failed/refused and/or neglected to follow its own Disciplinary Procedures and, therefore, Section 6 of the 1977 Act applies.
3. The Respondent acted in such a manner as to display complete disregard for the Unfair Dismissal legislation and, in effect, summarily dismissed the Complainant, as if there was no protection afforded under the legislation as set out.
4. The Complainant sought out an alternative employer to take over his Apprenticeship in order to allow them to complete the College term, which was approaching conclusion and in order to allow him to complete his exams and a project which was due, however, his attempts in this regard were unsuccessful.
5. The Respondent canvassed the Complainant and induced him to enter into a Apprenticeship on the basis that he would be in a more advantageous position on its conclusion and would have the opportunity to obtain a formal qualification. To summarily dismiss the Complainant, who was approaching the conclusion of his college term without any regard for the position which same placed the Apprentice in, showed a complete lack of good faith on behalf of the Respondent.
It was submitted, on behalf of the Complainant, that he was seeking compensation as redress.
Summary of Respondent’s Case:
At the commencement of the Hearing, the Respondent raised a preliminary point in relation to the duration of the Complainant’s apprenticeship. According to the Respondent, the Complainant’s apprenticeship commenced on 25 October 2017.
According to the Respondent’s submission, the Complainant was dismissed following a meeting on 6 April 2018 and the letter of dismissal, which issued on 9 April 2018, confirmed the date of dismissal as 6 April 2018. The Respondent submitted that, as the Complainant was dismissed on 6 April 2018, he had not the completed six months on apprenticeship, as is required by Section 4 of the 1977 Act.
In conclusion, on this preliminary point, the Respondent submitted that, as the Unfair Dismisses Act does not apply to apprentices until they have six months completed as an apprentice, the Complainant’s claim, which is being made on the basis that he has over six months as an apprentice, should fail, on that basis.
Respondent’s response to the substantive claim:
It was submitted on behalf of the Respondent that the Complainant’s employment commenced on 22 August 2017, with a view to completing an apprenticeship with the company.
According to the Respondent, during the course of employment interview on 12 May 2017, an issue arose in relation to where he would reside during his employment with the Respondent and during his time on the apprenticeship programme. Given the distances between the Complainant’s place of residence, the Respondent’s location and that of the College, in which the training will take place, the Respondent had some concerns in this regard. It was submitted that the Complainant indicated that he would travel from his home for the first months and would then look to moving closer to the Respondent’s location. It was further submitted that, on the basis of this explanation, the Respondent’s concerns in relation to place of residence were allayed and the Complainant commenced his employment on 22 August 2017.
The Respondent submitted that, during the first weeks of the Complainant’s employment discussions took place which resulted in mutual agreement whereby the Complainant would switch from the four-year apprenticeship programme and to a 2/3-year Manufacturing programme, run by a local third level institution. According to the Respondent, during year one of the programme, the Complainant would be based at the Respondent’s plant, between September 2017 and January 2018 (and during College holidays) and would attend college on a block release basis from January 2018 to mid-May 2018.
According to the Respondent’s submission, in or about October/November 2017, the Respondent’s Payroll/HR Officer (Ms D) and the Head of Research & Development (Mr E), who was also the Complainant’s in-house programme Mentor, spoke to the Complainant with regard to a number of matters including:
· Commitment expected by the Respondent in relation to participation on the college programme.
· Timekeeping and unauthorised absences, as the Complainant’s level of timekeeping and attendance had been unacceptable and that he needed to show improvement in this regard.
· Unacceptable attendance record.
The Respondent submitted that the Complainant apologised and reassured the Respondent that he would improve in these areas. According to the Respondent, while the timekeeping improved for a short period, it was necessary for Ms D to speak with the Complainant again, in or around November 2017 regarding his timekeeping, attendance and overall commitment.
According to the Respondent’s submission, during his attendance at the college in early 2018, a series of discussions/emails took place between the Complainant and Mr E. The Respondent submitted that the Complainant was unhappy with specific issues in relation to the programme, including potential salary on completion of the programme. According to the Respondent, the Complainant indicated some uncertainty as to whether he would continue on the programme and also has failed to sign and return a retention clause, regarding College fees, which was required by the Respondent. The Respondent submitted that the Complainant emailed Mr E on 12 March 2018, indicating that he would continue on the programme and would sign the retention clause.
The Respondent submitted that the Complainant returned to the plant for the college holiday period, from 25 March to 5 April 2018. According to the Respondent, during the Complainant’s first week back at work he was late for work on three separate occasions and did not clock-in when he arrived. It was further submitted that the Complainant was absent from work on 27 March 2018 and, whilst it is acknowledged that he telephoned reception to say he would not be at work, due to a car problem, he failed to respond to 2 calls and an email from Ms D regarding this absence. In addition, the Respondent submitted that the Complainant did not speak to either Ms D or Mr B about this absence when he eventually returned to work.
According to the Respondent’s submission, following a request from the Respondent to the College, on 4 April 2018, they were provided with information regarding the Complainant’s attendance and performance while at college. The Respondent submitted that the detail in this report was a cause for concern. It was further submitted by the Respondent that the Complainant was advised by his Supervisor, Mr B, that he was being invited to attend a disciplinary hearing on the afternoon of 6 April 2018 in relation to allegations regarding (a) time/attendance in work, (b) failure to sign the retention clause for college and (c) time/attendance and performance in college. According to the Respondent’s submission, the Complainant was advised by Mr B of his right to be accompanied/represented at the disciplinary meeting.
The Respondent provided detailed submission, including documentary evidence, in relation to the disciplinary process which included a disciplinary meeting on 6 April 2018, chaired by Ms A, following which the latter confirmed her decision to dismiss the Complainant and an Appeal Hearing conducted by the Respondent’s General Manager (Mr C), which confirmed the original decision to dismiss.
Concluding the submissions on behalf of the Respondent, their representative stated that they wish to refute the following contentions made by the Complainant:
· That the HR Manager placed significant reliance, when making her decision to dismiss on the fact that the Complainant did not relocate his residence: The issue here was that if the Complainant chose not to relocate, even though he gave the impression to the Respondent when being interviewed that he would, clearly the Respondent would not have selected him if he was going to have to travel that distance every day. The Complainant, like everybody else, had to attend work/college on time and no exceptions were made for employees who have to travel long distances, it was clear that the Complainant had not achieved this and had no intention of relocating.
· That the Respondent induced the Complainant to commence the College apprenticeship programme: Participation on the programme was discussed and agreed between the parties, as being the best for the Complainant and his future career with the Respondent. The Complainant was well aware of his obligations when taking up his role.
· That the Respondent has reneged on the payment of the College program and that the Complainant was unable to complete the course and remains potentially liable to the college for the course fees for the first year of the programme: Fees were paid for Year 1 of the course once invoiced to the Respondent and it was up to the Complainant to make alternative arrangements with the College regarding the completion of Year 1 of the course. In this regard, it should be noted that the Complainant failed to provide the Respondent with the College sponsor detail form, which is why there was a delay in the College invoice in the Respondent for the fees due for all the Respondent’s participants on the College apprenticeship course.
According to the Respondent’s submission, they were more than fair with the Complainant. There had been a number of conversations with him regarding his attendance problems, which clearly were affecting his time at work and college and he was persisting in not completing his retention form, which effectively was denying the Respondent of any right to seek their reimbursement if the Complainant decided to leave and not complete the course.
In conclusion, the Respondent submitted that it was clear from the Complainant’s attitude that he was not willing to be compliant with the Respondent’s reasonable requests and was effectively reneging on his own contractual obligations to the Respondent. Consequently, the Respondent had no alternative but to terminate the employment.
Findings and Conclusions:
The basis of the Complainant’s claim, from the outset, that his case fell under the provisions of the Unfair Dismisses Act, 1977, rests on his contention that Section 4 of the 1977 Act overrides the one-year continuous service requirement, as contained in Section 2 of the Act.
Section 4 of the Act states as follows:
4.—"This Act shall not apply in relation to the dismissal of a person who is or was employed under a statutory apprenticeship if the dismissal takes place within 6 months after the commencement of the apprenticeship or within 1 month after the completion of the apprenticeship.”
It is clear from the above section, that the provisions, set out therein, do not apply to apprentices until they have completed six months of their apprenticeship. It is accepted by all parties that the Complainant’s apprenticeship commenced on 25 October 2017. Therefore, the six months qualifying period as set out in Section 4 above, will conclude on 24 April 2018.
It is the Respondent’s submission that the date of dismissal is 6 April 2018, which while being delivered verbally on the day, was confirmed in writing by letter dated 9 April 2018. The Respondent also points to the letter of 23 April 2018 which advised that the Complainant’s appeal of the dismissal had been unsuccessful and confirmed the dismissal as being 6 April 2018.
The Complainant’s case in this regard rests on the P45 which issued from the Respondent and clearly shows that the date of cessation of employment as 26 April 2018. Clearly, the key issue in relation to the preliminary point is the date of dismissal/cessation of employment.
A P45 is clearly a document pertaining to the Revenue Commissioners and taxation. There is also case law, for example, O’Callaghan v Cogan’s Garage Ltd [UD41/2015] which holds that the issuing of a P45 to an employee is not determinative of whether there has been a dismissal or not. However, in this case there is no dispute that a dismissal has occurred, rather the issue is when that happened.
Having given careful consideration to the submissions and evidence presented by the parties in relation to this issue, I am satisfied that a P45 is an official document, one of the purposes of which is to confirm the date on which the employment ceased. In their oral evidence, the Respondent submitted that the P45 may have been completed with a view to the outcome of the appeal process, and the P45, containing the incorrect detail, then issued. In a context where the original decision to dismiss was strongly upheld in the appeal process, I find the Respondent’s submissions in this regard to lack credibility.
Therefore, taking all of the above into consideration, I find it is not unreasonable for the Complainant, based on the content of the P45 issued to him by the Respondent, to conclude that his employment with the Respondent ceased on 26 April 2018 and, as a result, that allows him to avail of the protection of the provisions as set out in Section 4 of the Act.
Based on this finding, I reject the Respondent’s Preliminary Point and move to consider the Complainant’s claim of unfair dismissal.
Section 6 (1) of the Unfair Dismissal Act 1977 states that:
“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 the circumstances, there were substantial grounds justifying the dismissal."
Section 6 (4) of the Act further states that:
"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…..(b) the conduct of the employee….”
Section 6 (6) of the Act states as follows:
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”
The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee.
On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show the fair process and procedures were applied when conducting the disciplinary process.
With regard to the within case, having reviewed all of the evidence adduced, I am satisfied that the Respondent had significant misgivings in relation to certain aspects of the Complainant’s conduct/behaviour and his general suitability for and/or his commitment to the apprenticeship programme. While one might reasonably question whether or not those misgivings, at that particular point in time, provided a solid enough basis for commencing a disciplinary process, particularly, one where the eventual sanction was dismissal, nonetheless, I accept that the Respondent considered that such a basis existed and it is not my role to second guess that decision.
However, in a context where the Respondent considered there to be reasonable grounds to deal with the matter through the Disciplinary Procedures, there is then, clearly, an onus and responsibility on the Respondent to ensure that fair process is applied and that the Complainant is provided with full access to an appropriate procedure which recognises and protect his rights in this regard.
It is well established in case law that when conducting a disciplinary process, particularly where there is potential that a serious sanction, including dismissal, might apply, the employer is required to demonstrate that fair process and procedures were applied when conducting the disciplinary process.
In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:
"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."
With regard to the case in hand, the Complainant presented compelling evidence in relation to the disciplinary process which clearly indicates that he was not provided with a fair or reasonable process.
Firstly, I noted that the Respondent’s Disciplinary Policy states that its objective is to: “ensure all employees are managed fairly and consistently. Where an employee’s conduct, attendance or performance warrants disciplinary action, the following procedures will apply, except in cases of gross misconduct which may attract summary dismissal.”. The Policy then goes on to set out a five step process consisting of: Counselling, formal verbal warning, first written warning, final written warning and, finally, dismissal.
Having carefully reviewed the evidence submitted, particularly, the official documentation issued to the Complainant in relation to his dismissal, it is clear that the case against him related to such issues as timekeeping and absence from work, failure to sign the College Sponsorship retention form and performance in college. While I accept that the Respondent reserves the right to commence a disciplinary matter at any stage of this procedure depending upon the gravity of the matter, given the nature of the issues involved in this case, I would consider it reasonable to expect that any disciplinary process engaged in by the Respondent would have commenced at the earlier stages of the process as detailed in the Disciplinary Policy.
Again, having reviewed the evidence, I can find little which demonstrates that the early stages of the process were utilised. The Respondent made submission to the effect that certain members of the management team spoke with the Complainant in October/November 2017 in relation to these issues. While the Complainant clearly disputes this contention, I note that the Respondent has nothing recorded in this regard, which of itself would be considered as a failure to properly address such matters.
While there is no evidence to suggest that the Respondent utilised any or all of Stages 1 to 4 of the process, there is significant evidence to show that the Complainant’s only interaction with the Disciplinary Procedures came in the form of one meeting with the Respondent’s HR Manager on 6 April 2018. Given that, at this meeting, the Complainant was advised of his dismissal, it is clear that the Respondent had commenced the disciplinary process at Stage 5 of the Policy.
The Policy defines Stage 5 as “Dismissal” and states that “if, an employee is guilty of further breaches, the Employee may be dismissed following a full and thorough investigation and disciplinary meeting.” Notwithstanding the appropriateness or otherwise of commencing at Stage 5, there is very little in the evidence to suggest that, in doing so, the Respondent applied the full rigours of that stage as defined in the Policy document.
In this regard, I note that the Complainant challenged some of the data presented to him at the disciplinary meeting on 6 April 2018, including one suggested “unauthorised absence” which related to a date prior to the commencement of his employment.
With regard to the meeting, on 6 April 2018, a number of questions arise which could reasonably be regarded as undermining any contention that fair process was applied to the Complainant in this regard. Such questions would include, but would not be limited to (a) the advising of the Complainant in advance, as to the purpose of the meeting, (b) given the nature of the meeting, the robustness of the advice to the Complainant of his entitlement to representation, (c) the level of and appropriateness of the consideration applied by Ms A, as the disciplining officer, when reaching the decision to dismiss. In this regard, the evidence shows that Ms A left the meeting room for approximately 20 minutes to consider her decision, before returning to inform the Complainant that his employment was being terminated and (d) who, if anybody, Ms A consulted while she was out of the room considering her decision all, particularly, in a scenario where Ms B had only recently joined the Respondent.
In the absence of any direct evidence from Ms A, or indeed Mr B, who also attended that meeting, on behalf of the Respondent, those questions remain unanswered. In a context where the Complainant presents a somewhat different account of events, both in terms of the disciplinary meeting and the allegations being made against him, the absence of such direct evidence from the perspective of the Respondent raises significant questions in relation to the fairness and appropriateness of the process.
With regard to the reasonableness and fairness of the process, as applied to the Complainant in this case, I note, with some concern, a comment from the minutes of the meeting of 6 April 2018. At the commencement of the meeting, Ms A advised the Complainant as to the format of the meeting, which included that, having listened to his responses, she would then adjourn to consider the outcome which, according to the minutes, “could be anything from no further action to verbal warning, first written, final written to dismissal”.
I find it difficult to accept that, in calling an employee to a meeting to discuss work-related conduct or performance issues, none of which could be reasonably considered to represent gross misconduct, the entire range of potential sanctions from “taking no further action” to “dismissal” might reasonably apply at the conclusion of the process. In my view, this is particularly unreasonable, in a context where the employee only received verbal notification of the meeting and its purpose.
Another issue which I noted to have significance relates to the failure of the Complainant to deliver on his commitment, given at job interview, that he would consider relocating closer to the location of the Respondent. Notwithstanding the submission on behalf of the Respondent that Ms A did not place significant reliance on this issue in coming to her decision to dismiss the Complainant, I note that there was significant discussion in relation to this issue during the disciplinary meeting on 6 April 2018. I also note that in the minutes of the Appeal Hearing, on 20 April 2018, which minutes were clearly produced by the Respondent, it states that at the end of the meeting the Complainant asked: “if the reason he was being fired was due to him not relocating”, Mr C, as the Appeals Officer, “confirmed it was”.
While the Respondent contends that the Complainant was dismissed for issues such as timekeeping, attendance and performance at work/college, it is difficult not to conclude that the issue of his failure to relocate was of significant concern for the Respondent and, therefore, could reasonably have influenced the decision to dismiss the Complainant.
Taking all of the above into consideration, I find there to be serious and significant procedural flaws and failures in the processes which led to the Complainant’s dismissal. Consequently, I find that the Respondent, on a number of levels, did not provide the Complainant with a fair procedure and, therefore, I find that the Complainant’s claim of unfair dismissal is well-founded.
Based on the above findings, I proceeded to consider the issue of redress. The Complainant is seeking compensation for nine weeks which he was out of work before securing alternative employment. On that basis, I find the awarding of compensation of that quantum to be fair and reasonable.
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Decision – CA-00027826-001
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the processes applied by the Respondent which led to the sanction of dismissal in this case lacked the necessary and appropriate standards of fairness and natural justice, which are required in such circumstances.
Consequently I find that this was an unfair dismissal and is, therefore, in breach of the Unfair Dismissal’s Act, 1977.
Based on the above decision, I award the Complainant €4,223.00 as appropriate compensation for the breach of his statutory rights.
Recommendation - CA-00019493-001
On the basis that this complaint was dismissed, to allow CA-00027826-001 proceed, no recommendation issues.
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Industrial Relations Act
Unfair Dismissals Act