Case Number: ADJ-00019013. Workplace Relations Commission

• Docket Number: ADJ-00019013
• Hearing Date: 15 August 2019
• Date: 24 September 2019
• Court: Workplace Relations Commission
• Parties: Engineering & Logistics Co-Ordinator v A Company

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00019013

Parties:

Representatives Mason Hayes & Curran Holmes O’ Mahony Sexton

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00024712-001	04/01/2019

Date of Adjudication Hearing: 15/08/2019

Workplace Relations Commission Adjudication Officer: Ewa Sobanska

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.

Background:

The Complainant started his employment with the Respondent on 14th June 2016 and resigned from his position on 3rd December 2018. The Complainant claims that he had to leave his job due to the conduct of the Respondent. Supplemental submissions were received from the parties on 22nd August, 29th August and 4th September 2019.

Summary of Complainant’s Case:

The Complainant submits as follows: The Complainant had no alternative but to resign from his position before he was dismissed from his employment. This fact is obvious from both the statements made by the Respondent's most senior employee, NOC, prior to the commencement of any disciplinary procedure against the Complainant and in how the disciplinary process itself was handled. The Respondent attempted, somewhat retrospectively, to follow a disciplinary procedure which purported to be fair and reasonable but which contained a number of fundamental flaws and could not address the fact that NOC had expressed his desire to get rid of the Complainant. BACKGROUND The Complainant submits that, prior to 20 November 2018, the Complainant had never been disciplined or spoken to in relation to his performance. On 20 November 2018, the Complainant was, without any prior notice, called to a meeting with the Respondent's CEO, NOC. NOC is founder of the Respondent and its most senior employee. The Respondent does not deny that the meeting occurred but states that ‘It is fair to say that the exchange became heated and that strong words were exchanged by both [NOC] and the Complainant'. However, somewhat surprisingly the Respondent makes no reference as to what was discussed. Given what transpired in the meeting this must be considered deliberate. Firstly, the Complainant notes that he did not exchange strong words with the Respondent; it was NOC who raised his voice. Secondly, NOC informed the Complainant of the following: · That he no longer wanted the Complainant working for the Company; · That the Complainant had done the "most despicable" thing that any employee had ever done to him in all his years in business by not changing a sign with an old telephone number; · That he was not going down the line of written warnings, he said this "had to end now, it's nothing personal but it cannot go on, you can go and find another job, or you can stay here until Christmas and then go"; and · That he did not want the Complainant to be a burden on his sons (the Co-Managing Directors — SOC and DOC). Following this meeting, the Complainant spoke with his direct line manager, DOC and asked him if he was a burden on the Company. DOC stated he was not and that he, in fact ,relied and depended on the Complainant. The Complainant submits that on 22 November 2018, NOC again approached the Complainant in the warehouse and advised him of the following:- · This was his Company, that he had worked very hard to get it where it is today and that he will win that "l always win"; and · That the Complainant was going to attend a meeting next week with NOC, SOC and DOC and that the Complainant was "going to get a serious warning”. It is again noteworthy that the Respondent in its submission makes no reference whatsoever to this meeting. This is deliberate as NOC has totally undermined the Complainant right's to fair procedure and natural justice in that he had already disclosed the outcome of the disciplinary process before it had even commenced. Thereafter the Respondent set in train the disciplinary procedure with a predetermined outcome as evidenced by a number of fatal procedural flaws. The Complainant was invited to a disciplinary meeting on 3rd December 2018. The letter was signed by SOC. SOC states that "l have decided to hold a disciplinary hearing…” By virtue of this fact, it is clear that SOC is holding himself out as chairing this meeting. The letter enclosed a copy of the Company's Disciplinary Policy which the Complainant had never received before this. This in itself is a breach of Section 14 of the Unfair Dismissals Act 1977 where it states that "An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee". The Disciplinary Policy states that "Issues will always be discussed before a decision concerning disciplinary action or dismissal is taken. The principles of natural justice and fair procedures will be upheld at all times". The policy also states that "Where relevant, where a sanction is applied short of dismissal, the employee shall be notified of the alleged shortcoming, what needs to be done by way of improvement, the period during which improvement is to be shown and the consequences of non-improvement". Given the fact that none of these issues were brought to the Complainant's attention before the commencement of this disciplinary meeting, it cannot be stated that the Respondent abided by its own policy. The Disciplinary Policy states that the employee has "the right to an impartial hearing". Let it not be forgotten that SOC sent the disciplinary invite letter indicating that "l have decided to hold a disciplinary meeting…” Present at the meeting was NOC, SOC, DOC and RF (Office/ HR) as a notetaker. SOC did not chair the meeting, it was chaired by NOC, the exact same person who had informed the Complainant a few days earlier that he would be invited to a meeting with him, SOC and DOC and given a "serious warning". As the outcome had been predetermined, NOC (during the disciplinary meeting itself and without taking any time whatsoever to consider level of sanction which he deemed appropriate) immediately gave the Complainant a "written warning, which was to stay in place for 12 months". Given NOC’s eagerness to issue his "serious warning" the Complainant has no idea whether he was being issued with a first written warning or final written warning. One assumes that it was NOC’s intention to issue a final written warning as the disciplinary policy provides for the fact that final written warnings will last for 12 months, however, first written warnings will last for 6 months. That said, the Respondent's submission to the WRC sheds no light on this fact as it states that “The Complainant was informed that he would be issued with a written warning which would stay on his file for 12 months”. To this day the Complainant is unaware of the level of...