Case Number: ADJ-00000253. Workplace Relations Commission

• Docket Number: ADJ-00000253
• Date: 20 April 2016
• Court: Workplace Relations Commission
• Parties: A Worker v A Respondent

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000253

Complaint(s)/Dispute(s) for Resolution:

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-00000353-001	21/10/2015

Date of Adjudication Hearing: 29/01/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following 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.

Complainant’s Submission and Presentation:

1. The Complainant was dismissed from his employment following a disciplinary procedure. The reason for the dismissal was gross misconduct, namely doing paid work elsewhere while absent from work. The Complainant submitted that the dismissal was unfair and unwarranted as he was not engaged in doing paid work elsewhere on the 16th of July 2015. The Complainant denied he was engaged in other paid work and submitted there was no evidence to the contrary. He further submitted that the dismissal was disproportionate as well as unfair and unwarranted.

2. The Complainant’s submission was that on the 16th of July 2015 at approximately 3pm he rang his employer and spoke to his line leader and informed him he would not be at work for 4pm as he had to attend “a personal matter”. He confirmed he would be in attendance at work between 7pm and 7.30pm.

3. His evidence was that his brother who runs a plant hire business was engaged to attend the crash site at [a village 30km away] in order to remove the crash wreckage. At approximately 3pm the Complainant’s brother contacted him and asked him to attend at the crash site and to bring equipment that he required. It was at that stage that the Complainant telephoned the Respondent and informed them that he wouldn’t be able to attend at 4pm.

4. When the Complainant attended work at 7.30pm he sought out his team leader. The Complainant requested that he would be allowed take four hours annual leave for the time he had missed as he had more than sufficient leave to take in the leave year. The team leader refused the request and asked the Complainant to detail where he was and what he was doing between his scheduled start time of 4pm and his time of arrival at work 7.30pm. The Complainant responded and informed the team leader that he had to attend a family/personal matter. The team leader queried whether he was at the crash site in [the village]. The Complainant replied that he was in [the village], but not at the crash site. The team leader instructed the Complainant to go home and requested that he set out his explanation in writing.

5. The Complainant submitted his letter of explanation on the 17th of July 2015.

6. A disciplinary investigation was commenced by the Respondent into the actions of the Complainant. Initially the Complainant denied that he was crash site, however on being furnished with a photograph which identified him carrying a piece of the wreckage and wearing a high visibility jacket similar to the other workers at the crash site, he admitted that he was in the photograph at the site.

7. The Complainant submitted that he made an honest attempt to account for and provide evidence to the Respondent in relation to his whereabouts on the day. The Complainant submitted that he cooperated with the investigation to the best of his ability. The Complainant submitted that he valued his job and believed that the investigation report was “untrue, fanciful and utterly subjective”. The Complainant submitted that he worked for almost twenty years for the Respondent and enjoyed his work so much so that his choice of recompense was to be reinstatement. He submitted that at all times throughout his employment he was respectful to the Respondent and his colleagues and was surprised by the investigation conclusion.

8. He further submitted that the Respondent had treated him most unfairly by dismissing him. He submitted that his actions on the day in question did not warrant dismissal as he had contacted the Respondent prior to his shift start. He did what was expected of him and phoned his employer informing them that he would be delayed.

9. The Complainant took issue with a reference in the decision to dismiss him on the 7th August 2015 to his Stage 4 Suspension which had elapsed on the 30th March 2015. The Complainant submitted that this was an example breach of natural justice and due process.

10. The Complainant further submitted that the Manager Development Engineering, who was charged with hearing his appeal, was in a less senior or in an equal position to the first instance decision maker who was the Focus Factory Manager.

11. His team leader had formed a certain view as to his guilt on his attendance at work on the 16th of July 2015. The fact that he instructed him to go home rather than working out the remainder of his shift was evidence of same.

12. The reference to the Complainant’s previous disciplinary record indicated that the decision to dismiss him was made not solely in relation to the events of the 16th of July 2015 but also took into account previous disciplinary sanctions. During the investigation meeting on the 27th of July 2015 and the 28th of July 2015, the Complainant’s past disciplinary record was raised. The HR manager stated that the Complainant had just come off a suspension and should be trying to build up trust with the company. The Complainant replied that it should never have happened [his suspension]. However the reference to the Complainant’s previous suspension at the investigation meetings of the 27th July 2015 was clouded by the comment by the HR manager that his previous suspension was “not counted”.

Respondent’s Submission and Presentation:

13. The Respondent is a large medical technology services and solutions company. The facility has been in operation for thirty three years and has circa five hundred employees at the plant.

14. The facts as to what happened on the 16th of July 2015 at were not in dispute.

15. When the Complainant arrived at work his shift team leader asked the reason for his absence from work and inability to start at his normal time. The Complainant replied that it was “personal”. The team leader said to the Complainant that he hoped that his absence had nothing to do with “the incident in [the village]” the previous day. The Complainant replied that he was in [the village] that morning but that that was not the reason why he wasn’t in work at the designated time. The reason for his absence was “a personal reason”. The team leader advised the Complainant that another employee was now doing his work and sent him home.

16. By letter 20th of July 2015 the Human Resources manager wrote to the Complainant advising that his explanation for his failure to report to work at the designated time of 4pm was insufficient and that he needed to provide further explanation for the reasons. He was invited to attend a meeting at 9am the following morning to discuss this further.

17. A meeting was held the following day 21st of July 2015 attended by the Complainant, his shop steward, the Human Resources manager and the line manager. The Complainant was asked to explain further and to provide more information as to the reasons for his failure to attend work on the 16th of July 2015. The Complainant at that meeting again stated that his absence was due to personal reasons, that “a family member was in bother and needed him”. He maintained his assertions that he was not delayed due to the crash in [the village]. He admitted that he had received a telephone call from his brother who was at the crash site. His brother had a plant recovery business and was involved in the removal of the wreckage from the crash site. Initially he stated that the telephone call from his brother was at 3pm however he later clarified this as having been between 11am and 12am. When asked about the difference in the times, he replied he was “confused”.

18. The...