Case Number: ADJ-00014120. Workplace Relations Commission
| Docket Number | ADJ-00014120 |
| Hearing Date | 14 November 2018 |
| Date | 01 January 2019 |
| Year | 2019 |
| Court | Workplace Relations Commission |
| Parties | A general operative v A food processing company. |
In accordance with Section 41 of the Workplace Relations Act, and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
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The Complainant commenced employment with the Respondent on 22/10/2001 as a general operative in the Respondent’s food processing plant. On Friday 29th September 2017 the Complainant left work at 4.00pm. The scheduled work for the day had not been completed and this caused problems for the Respondent. When the Complainant returned to work on Monday 2nd October 2017 he was handed a letter placing him on a paid suspension pending the outcome of an investigation into his going home at 4.00pm the previous Friday. After an investigation the Complainant was dismissed from employment om 27th October 2017. A complaint was received by the Workplace Relations Commission on 17/04/2018. |
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MATERIAL FACTS. 1. On 29th September the Complainant left work at 4.00pm, he had been informed by his manager that work would finish that day at 4.00pm. On arriving to work on 2nd October the Complainant was issued with a letter informing him that he was suspended pending the outcome of an investigation. 2. A disciplinary procedure was initiated. The first instance hearing took place on 20th October 2017 and on 27th October 2017 the claimant received a letter of dismissal due to gross misconduct. 3. Ultimately, it was found that the claimant’s evidence was not credible, his actions with 12 other people amounted to informal industrial action, that he believed informing his supervisor that he was leaving work rather than requesting permission was appropriate and that the employee / employer relationship had broken down. 4. The Complainant did not utilise the internal appeals procedure. He was out of the country at this time and when he returned the time for requesting an appeal had elapsed. 5. On 2nd February 2018 the Complainant commenced employment with another food processing company and left that company to work for a security company. LEGAL BASIS FOR CLAIM. 2.1 Relevant provisions of the Unfair Dismissals Act 1977 as amended Section 1 of the Unfair Dismissals Act 1977 defines “industrial action” as: 2.1.1 lawful action taken by any number or body of employees acting in combination or under a common understanding, in consequence of a dispute, as a means of compelling their employers or any employee or body of employees, or to aid other employees in compelling their employer or any employee or body of employees, to accept or not to accept terms or conditions of or affecting employment. 2.1.2 Section 5 (2) of the 1997 Act provides 2) The dismissal of an employee for taking part in a strike or other industrial action shall be deemed for the purposes of this Act to be unfair dismissal if- a) one or more employees of the same employer who took part in the strike or other industrial action were not dismissed for so taking part or b) one or more of such employees who were dismissed for so taking part were subsequently permitted to resume their employment on terms and conditions at least as favourable to the employees as those specified in the said paragraph (a) or (b) and the employee was not. 2(a) without prejudice to the applicability of any of the provisions of section 6 to the case, where – a) An employee – i) Is deemed by subsection (1) to have been dismissed by reason of a lockout, or ii) Is dismissed for taking part in a strike or other industrial action, And b) None of those who were locked out, or took part in the strike or industrial action, were re-engaged, In determining whether, in those circumstances, the dismissal is an unfair dismissal, the adjudication offer or the Labour Court, as the case may be, shall have regard for that purpose only, to – i) The reasonableness or otherwise of the conduct (whether by act or omission) of the employer or employee in relation to the dismissal, ii) The extent (if any) of the compliance or failure to comply by the employer with the procedure referred to in section 14 (1). iii) The extent (if any) of the compliance or failure to comply by the employer or the employee with provisions of any code of practice referred to in section 7 (2) (d) and iv) Whether the parties have adhered to any agreed grievance procedures applicable to the employment in question at the time of the lock-out, strike or industrial action. 2.1.3 Section 6 (1) of the 1977 Act as amended provides that the onus is on an employer to demonstrate that a dismissal was fair: “ 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”. 2.1.4 Section 6(4) of the 1977 Act provides that: “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 … 2.1.5 The following subsections are of relevance in the determination of whether a dismissal was fair: i) “(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or 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 justifying the dismissal. ii) (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so – iii) a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 92) of this Act”. DISMISSAL AS A RESULT OF INDUSTRIAL ACTION In Tuke v Coillte Teoranta (UD 443.97), Employment Appeals Tribunal, 27 February 1998 [1998] 9 E.L.R. 324, the claimants had not agreed to a collective agreement introducing a new scheme so were not paid additional sums in accordance with that agreement. The claimants felt they were being pressurised into accepting the new scheme and this led to industrial relations problems. These problems were expressed in a dispute about what was known as “walking time”. It was customary for employees at a number of forests to report for work at a designated at 8 am on each working day. They would then drive their private cars onto the respondent’s property until they had reached a point as close to the area they were to work in that day as could be reached by car. They would then walk the rest of the way to their work area. The time they spent travelling by car and on foot to their work area was known as “walking time” and this time was paid at 75 per cent productivity. As a means of protest, some of the claimants began to leave their cars at the designated point in Glendalough Forest at 8 am each day. They would then walk the rest of the way to their work area. The result of this was that some of the claimants were claiming 2.5 hours “walking time” instead of the normal 15 minutes. This was entirely unacceptable to the respondent and several meetings were held at which the management insisted that the workers should return to the long-accepted practice. Thirteen employees insisted on continuing their... |
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