FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : ORGANIC LENS MANUFACTURING (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - BRIAN MCALLISTER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s.) ADJ-00023478, CA-00030053-001. This is an appeal under the Unfair Dismissals Act 1977. Mr. McAllister, ‘the Complainant’, worked for Organic Lens Manufacturing, ‘the Respondent’ from 1997 to 6 June 2019. Between November 2015 and March 2016, the Complainant had periods of sick leave. In February 2016, he was transferred to a new work role. The Complainant raised concerns that the new work location was having a detrimental effect on a health condition. He was moved to a training room while this concern was assessed. In January 2017, the Respondent’s medical advisors assessed the Complainant as fit to return to work in the role to which he had been assigned in in February 2016. This assessment was disputed by the Complainant. Subsequent discussions resulted in an agreement between the parties. In circumstances that are disputed between the parties, this agreement was not implemented. The Complainant was on sick leave from March 2017 until his dismissal. In April 2017, the Complainant lodged grievances against two managers. These grievances were not upheld. A subsequent appeal was not upheld. A claim by the Complainant under the Industrial Relations Act was referred to the Workplace Relations Commission but a redundancy agreement was reached between the parties prior to the hearing. This agreement became the subject of claim and counter claim between the parties and was not executed. The Respondent withdrew from the proposal. In May 2019, the Complainant indicated that he was fit to return to work. The Respondent replied to say that they could not confirm a return to work date. The Complainant visited the Respondent’s premises and spoke to the General Manager. The General Manager wrote to the Complainant’s union representative to seek a formal meeting. This meeting never happened. The Complainant then lodged a further complaint under the Industrial Relations Act. On 6 June 2019, the General Manager notified the Complainant that he was being dismissed. The Complainant sought an appeal. This was refused. The Complainant lodged a complaint under the Unfair Dismissals Act with the Workplace Relations Commission. The Adjudication Officer found that the complaint was well founded and awarded compensation of €16200 to be paid to the Complainant. The Complainant appealed the Decision to this Court to seek re-instatement in his job with the Respondent. Summary of Respondent arguments. The Complainant was dismissed because the Respondent had insufficient confidence in him to behave in a manner which was conducive to an effective employment relationship, which goes to the root of the contract of employment. It is well established that the standard for assessing if a dismissal is reasonable is that of a reasonable employer as set out inLooney v. Looney UD 843/1984.A reasonable employer ‘ in the same position and circumstances’ would have acted as the Respondent did. As noted by the Court in the case ofStructured Finance Management Limited v. Vadym Kalinin UDD181,in this case also‘the circumstances in which the decision to dismiss do not stand in isolation of other events that had taken place over many years involving the Complainant’. Without prejudice to the foregoing, should the Court find in favour of the Complainant, the Respondent contends that he contributed fully to his dismissal and is not entitled to any redress, as has occurred in other cases includingMurray v. Meath County Council UD 43/1978. In addition, the Complainant has failed to meet the requirements for mitigation of loss, as set out in the case ofSheehan Continental Co.to employ a reasonable amount of time each weekday in seeking work. As perBurke v. Superior Express Ltd.,the Complainant has a responsibility to expand his job search beyond his field of expertise. Even should the Court find for the Complainant, re-instatement is not the appropriate remedy, as there has been a fundamental breakdown in the employment relationship. In the recent case ofSpecial Needs Assistant v. School ADJ-00025023,the Court noted that the bond of trust between the parties had broken and that there was no prospect of any reasonable working relationship in the future, so that the appropriate remedy was deemed to be compensation. The Respondent provided a huge level of supports to the Complainant, including multiple assessments with various medical professionals but the Complainant refused reasonable instructions to return to work on a number of occasions. For a significant period, the Respondent created a role for the Complainant to allow him to remain in gainful employment while seeking to resolve his grievances. There was comprehensive engagement with the Complainant’s representative and the Respondent attended, and paid for, external mediation. After a full investigation, none of the Complainant’s grievances were upheld. The Complainant’s unreasonable behaviour collapsed an agreement reached under the auspices of the WRC. The Complainant behaved unreasonably, became difficult to manage and consumed an inordinate amount of management time. The only reasonable option for the Respondent was to terminate the employment. Summary of Complainant arguments. The Complainant does not accept that it would be impossible to re-establish good working relations. He was targeted deliberately for dismissal having raised grievances. An agreement reached on these matters was reneged upon by the Respondent. The Complainant was left with a series of unanswered questions. Following these events, there was a focus on terminating the Complainant’s employment by way of redundancy, settlement agreement or, eventually, dismissal. The Complainant never stood a chance of remaining at work. The Complainant was dismissed without any disciplinary process being followed by his employer. He was denied any appeal of the decision to dismiss. The Respondent failed to follow its own disciplinary procedure. The Complainant was denied natural justice He was targeted for dismissal and even after he requested an investigation by the Respondent company’s Head Office in France, he was never given the outcome of that investigation The Complainant denies that he acted unreasonably.He was penalised for having raised grievances. The decision to dismiss the Complainant was grossly disproportionate to the circumstances. The award by the Adjudication Officer does not reflect the gravity of the events for the Complainant. The appropriate remedy is to restore him to his job. The Complainant does not accept the view of the Adjudication Officer that he was 20% to blame for the dismissal. The Complainant has made significant efforts to secure alternative employment and, thereby, to mitigate his losses. Very shortly after his dismissal, the Complainant started a three day per week course in Sports and Recreation, while simultaneously seeking work. Evidence can be provided of at least 20 applications for work. He also did work experience in a Gym in the hopes of eventual employment. The Complainant secured work in October 2020 at a slightly lesser rate of pay than that which applied to him with the Respondent, (€13.75 per hour as opposed to €14 per hour). However, this is temporary and lacks job security. The applicable law. Unfair Dismissals Act 1977 Unfair dismissal. 6.— (1) 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. 4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes 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, Redress for unfair dismissal. 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, Deliberation. The central facts surrounding the dismissal in this case are not in dispute. Following prolonged tensions between the parties regarding various matters, the Respondent decided that the Complainant was being unreasonable and taking up too much management time and, as a result, should be dismissed. As noted in s.6 of the Unfair Dismissals Act, see above, an employer who dismisses an employee for their conduct may be entitled to argue that the dismissal was fair. However, it is well established that, in reaching any such conclusion, an employer must comply with the requirements of natural justice and, with specific reference to the instant case, is required to adhere to the principle of‘audi alteram partem’ i.e.before a person is judged, they have a right to be heard. This right is fundamental and cannot be left in the gift of those who make the judgement. There is no necessity in the instant case to recite the many cases that have upheld the principle. It follows, therefore, that the decision to dismiss the Complainant based on the Respondent’s view of his conduct without any charge being put to him, without him being given any right to answer a charge and then, to compound matters, to refuse him an appeal, together amount to a breach of the Complainant’s rights and the dismissal cannot be viewed as anything other than unfair. While the Respondent is correct to refer to the role of the Court in upholding the actions of a reasonable employer, as per, among other cases ,Looney v Looney 843/1984,the Court could not possibly condone as ‘reasonable’ an action that breaches the Complainant’s rights in such a stark manner, notwithstanding any views of the Respondent regarding the Complainant’s behaviour. The Adjudication Officer was correct in assessing the behaviour of the parties in the context of an assessment of an appropriate remedy under s.7 of the Act, having decided that the dismissal was unfair. That is the appropriate context in which arguments by either party regarding the behaviour of the other party in the instant case must be considered. The Complainant argues that, given the impact of the dismissal on him and what he believes to have been the reasonableness of his behaviour, he should be re-instated. The Respondent seeks to argue that the entire blame for the dismissal rests with the Complainant and that no award should be made to him. There is a very good reason why re-instatement is a remedy that is determined by this Court relatively rarely as it is to be expected in most cases that dismissal itself indicates a breakdown in the employee/employer relationship and it is not the role of the Court to inflict hardship on both parties by requiring them to restore a relationship which is often long past any possibility of restoration. However, there are exceptions and the Court has to consider if this is one such. Unfortunately, the claims and counter claims between the parties throughout the period covered in the summary of background to the case above and up to and including the Court hearing, do not suggest to the Court that requiring that the Complainant be re-instated is in his interests or those of the Respondent. In the‘Special Needs Assistant’case quoted by the Respondent, see above, the chief determinant for the Court was the fact noted that ‘objectively, this employment relationship is irretrievably broken’. Everything presented to the Court supports the view that this observation is equally applicable to the instant case. It flows from that to the logical conclusion that the appropriate remedy is that of compensation. In this regard, the Court does not accept the absolutist position of both parties that 100% of blame for the breakdown in the relationship rests with the other party. That is rarely true in any case. While there can be no doubt that the dismissal was unfair by every yardstick and that a decision to dismiss without due process cannot be described as anything other than an unfair dismissal, equally that decision, unfair as it undoubtedly was, did not arise in a vacuum and the fact that the Complainant did not return to work when deemed fit to do so would be regarded by most onlookers as justification for some impatience, to put it mildly, on the part of his employer and is hard to explain or justify. The Court notes also that while the Complainant could not be said to have demonstrated that he employed part of every single work day to applying for work, he has demonstrated real endeavour in mitigating his losses by seeking to learn new skills, acquiring work experience and applying for a range of jobs, with eventual success, albeit of a temporary nature. Taking all of these factors into account, the Court considers that compensation for the unfair dismissal of the Complainant in the amount of €21, 000 should be paid to him by the Respondent. Determination. The Decision of the Adjudication Officer is varied accordingly.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
