Case Name: Robert Niechcial v Waters Munster Glass Limited (UD 877/2010).

Legislation: Unfair Dismissals Acts 1977 to 2007; Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Jurisdictions/Subject Matter: Unfair Dismissal


Facts

The claimant was employed by Waters Munster Glass Limited, a glass, glazing and mirror company located in Co Cork.

On the 18 November 2009, the claimant reported for work early, as was his normal practice. The day shift supervisor informed him that he may have to work two machines that evening. The claimant had no problem with this as long as he would be assisted by a colleague. However, when the night shift supervisor arrived, he told the claimant to start up both machines. At the time the claimant’s colleague was engaged on another machine and was unable to assist him. As a result, the claimant refused to start the other machine as instructed. The supervisor then aggressively and rudely told him to get on with the job. The claimant then voiced his opinion that he felt that the supervisor should respect him and not speak to him like that. The supervisor replied using expletives. The claimant told the Tribunal, that this was not the first time the supervisor had treated him like this.

The respondent’s witness states that in the report he received from the night shift manager, he did not specifically state that the claimant refused to carry out an instruction. It was only at an informal meeting on the 27 November 2009 did the claimant accept that he did not act on instruction. The witness also states that the night shift manager indicated to him that the claimant had been aggressive towards him, which contradicted the claimant’s version of events.

On the 30 November 2009, the claimant was given an hour’s notice of a meeting, the nature and content of which was not conveyed to him until it commenced. It was only at this point was the claimant informed that this was a disciplinary hearing. Also present at the meeting was the brother of the night shift manager, who acted as an interpreter as the claimant’s English was poor. The witness for the respondent stated that he had thought of dismissing him at this juncture for gross misconduct but opted instead to issue him with a final written warning in relation to his refusal to carry out the instructions of his supervisor. When the claimant told the respondent company that he intended to appeal the sanction, the Director then decided not to issue the warning. As a result neither a warning nor an appeal took place in relation to this incident. The witness agreed that he had acted as an investigator and a disciplinarian in this case.

On the 2 December 2009, the claimant made a formal complaint of bullying to the Managing Director against the night shift supervisor. The respondent claims that in response to the allegation the witness interviewed up to 9 employees and could find no supporting evidence that bullying had occurred. On the 11 December 2009 the claimant was informed that his complaint had been investigated and the company had found no grounds for his complaint.

The respondent claims that the claimant then invited the Director to issue him with a final written warning, which he would accept. This offer was rejected and on the 16 December 2009 a dismissal letter was furnished to the claimant. The dismissal was on the grounds of gross misconduct in refusing to carry out a lawful instruction and engaging in serious misconduct affecting the interests of the company. There are contradictory views on whether the claimant was informed of his right to appeal this decision. However, both parties agree that no copies of statements or notes of meetings relevant to the investigation of this case were provided to the claimant.


Determination

In determining that the claimant was unfairly dismissed, the Tribunal found that the procedures adopted by the respondent were in fact defective. Proper procedures were not in place as was also evidenced by the Director of the respondent’s own admission, when he informed the Tribunal that he carried out the investigation and also made the decision to dismiss the claimant. Furthermore, the Tribunal were of the view that the claimant had not been afforded the right to appeal his dismissal.

However, the Tribunal found that the claimant had significantly contributed to his own dismissal and took this into consideration when awarding €5000 under the Unfair Dismissals Acts, 1977 to 2007.

Under the Minimum Notice and Terms of Employment Acts 1973 to 2005 the Tribunal awarded the claimant €1,100.


Legal Review

This case clearly illustrates the importance of applying fair procedures when dismissing an employee.

The 1977 Act states that employees should be furnished with the disciplinary procedure that will be followed in the event of dismissal being contemplated. Regard must also be had to an employer’s failure to comply with any code of practice drawn up under the terms of the 1993 Act itself.

The EAT has always taken the view that if an employer acts in a manner that is procedurally unfair the dismissal itself will be held to be unfair. The EAT takes the view that fair procedure by an employer is an integral part of a dismissal but, as illustrated in this case, tends to award compensation and reduce the amount of compensation by a significant percentage as a measure of the employee’s contribution to his own dismissal.

Under the Minimum Notice and Terms of Employment Acts 1973, an employer may dismiss an employee without notice for serious misconduct, but an employee can contest an employer’s justification in doing so. Here the Tribunal determined that the employer was not justified in their dismissal and that the claimant was entitled by law to an amount of notice dependant on his length of service.


Conclusion

The case demonstrates how the Tribunal views the importance of fair procedures when dismissing an employee.

Employers should fully adhere to the Unfair Dismissals Acts 1977 to 2007 and ensure that fair procedures are followed at all times. Employers should follow the necessary requirements in a disciplinary hearing, including the following:

- Employers may not remove an employee without first according to him/her natural justice for example the employee must be presented with the case against him or her and he or she must be allowed to be represented and given the opportunity of representation;

- Employees must be given the reasons for their proposed dismissal and an adequate opportunity of making a defence to the allegations made against them.

Whatever the seriousness of the allegations made against an employee there is a duty on the employer. The employer’s conduct in any investigation and follow up on complaints will be crucial in determining whether the employer acted reasonably towards the employee.

Full case Decision:
http://www.eatribunal.ie/determinationAttachments/1971512c-ee00-4f92-a9ae-d0b3fcc6ab90.pdf