Recent Employment Appeals Decisions – 6 June 2012 – Part 1

Hi all, thought it would be useful going forward to summarise some of the Employment Appeals decisions being handed down and the lessons to be learned. The full case decisions are accessible on the Employment Appeals Tribunal website (whereby you can subscribe to decision updates by email also).Case UD 2442/2010/RP328/2010 – B v Alert Line Limited BackgroundThe respondent company provides a remote monitoring service for intruder alarms, elderly alarms and remote monitoring using CCTV. A number of incidents arose with the claimant whose role including monitoring alarms and CCTV and to contact the relevant people when alarms were activated. On 21st May 2010 the operations manager reported to the managing director that the claimant had been accessing adult sites during working hours and using the respondent’s computer system. The claimant was suspended for two weeks on full pay. The managing director engaged a computer consultant to check the system. The report showed that on numerous occasions adult sites were accessed when the claimant was at work and logged on to the system. The managing director with the operations manager and the Human Resources officer met the claimant accompanied by his brother on 3rd June 2010. The claimant did not deny accessing adult sites and it was noted that he would have known that this was not allowed because in the early days of the business an employee resigned before the disciplinary process was started for the same actions. The claimant was dismissed and unsuccessfully appealed the decision to dismiss him. At the appeal, the claimant maintained that he was driven to access adult sites by bullying by the managing director. The claimant fully admitted what had happened. He had known about the code of conduct even though it was not in writing.DeterminationThe claimant was aware of the seriousness of the matter and that his actions posed a risk to the respondent’s business. He also accepted that he was aware of the unwritten code of conduct. The Tribunal finds that the claimant’s dismissal was not unfair and the claim for unfair dismissal fails.CommentIt is interesting to note in this case that even though there were no written codes of conduct, the Tribunal accepted that the claimant would have been aware of these and it was also admitted by the claimant at the hearing.  It is always best practice to have any workplace related documentation including policies and procedures/codes of conduct in writing. More importantly these policies and procedures need to be brought to the attention of the employees (if training is provided the employee should be asked to sign an attendance sheet) and acknowledgement in writing of receipt of the policies should also be obtained from all employees. Finally all policies and procedures/codes of conduct/staff handbook should be easily accessible to the employees whether on the intranet or elsewhere.Case 1413/2010 – C v Dublin City Council BackgroundThe claimant was employed as a truck driver from June 2004. At the time of the incident which led to his dismissal the claimant had been issued with a final written warning, with twelve-month duration, and a two week suspension from the payroll from 6 April 2009. On 2 July 2009, a day when Dublin experienced extremely high levels of rainfall that led to localised flooding, the claimant was involved in an incident with the gully manager of the respondent’s drainage department. The claimant was asked by the gully manager to unload the sandbags putting one onto a grass circle for the residents of to use to protect their properties and the second at the entrance to the street in order to provide material to build a wall to prevent further ingress of flood water. The claimant insisted that he would need slings and lifting chains for this operation. The respondent’s position was that the claimant told the gully manager that it was raining and he didn’t work in the rain. There followed a verbal altercation and it was alleged the claimant then used foul language to him. The claimant was instructed to leave the work site. A disciplinary interview was then carried out on 3 September 2009 which was conducted by a senior executive engineer and an area engineer. The claimant was accompanied by his union representative. The interview covered the incident of 2 July 2009. A disciplinary hearing on foot of the senior executive’s recommendation was held on 22 September 2009. The claimant was again represented by his union representative. The decision was communicated to the claimant in a letter of 25 September 2009. The claimant lodged an appeal against his dismissal and this was heard by the Employee Executive Officer on 3 November 2009. On 26 November 2009 the Employee Executive Officer wrote to the claimant confirming the failure of his appeal. He was removed from the payroll on 27 November 2009 and received four weeks’ pay in lieu of notice.DeterminationHaving carefully considered the evidence the Tribunal are satisfied that dismissal was warranted in the circumstances. The respondent followed its disciplinary procedures in a fair and thorough manner. The claimant was given every opportunity to state his case and avail of an appeals process. The Tribunal dismiss the claim under the Unfair Dismissals Acts, 1977 to 2007.CommentThe Respondent in this case appeared to have robust disciplinary procedures which it applied as noted by the Tribunal in a fair and thorough manner. A timely reminder for employers to review all policies and procedures, including their disciplinary procedures. Attached is a link to the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration Order 2000 (S.I. 146 of 2000).Case UD862/2010 – P v E&I EngineeringBackgroundThe respondent is an engineering company engaged in the production of machine components. It was decided to restructure the business and part of this process involved the rearranging of shifts within the plant. The claimant had been on a shift pattern of 12:00 to 20:00 but this shift was to become obsolete and new shifts introduced. The respondent drafted a new contract of employment outlining the changes and asked the claimant to sign this. The new contract did not alter the claimant’s hourly rate of pay, nor did it change his job description however the claimant would not sign the new contract, nor would he agree to the restructuring and therefore the respondent was left with no choice but to make him redundant.DeterminationHaving carefully considered the evidence adduced the Tribunal was satisfied that the claimant’s position became redundant as a result of reorganisation within the respondent company. The Tribunal was also satisfied that the respondent offered the claimant suitable alternative employment and that the claimant refused this offer, leaving the respondent with no alternative but to terminate the claimant’s employment due to redundancy. Therefore the Tribunal finds that the claimant was not unfairly dismissed and his claim under the Unfair Dismissals Acts, 1977 to 2007 fails.CommentIn any redundancy situation, an employer must be extremely careful to ensure the proper procedure is carried out including considering all suitable alternatives prior to a redundancy being implemented. Caselaw emanating from the Employment Appeals Tribunal over the past number of years has placed a considerable burden on employers who must now face a myriad of steps to ensure the procedure is properly carried out. (see Gerry Fennell v Resource Facilities Support Limited (UD57/2009)/Sheehan & O’Brien v Vintners Federation of Ireland (UD787/2008)/Ponisi v JVC Europe Limited (UD949/2008)/Tom Mulligan v j2 Global (Ireland) Limited (UD1369-2008) to name but a few).One of the challenges facing employers is what is meant by “suitable alternative employment”. (Section 15 of the Redundancy Payments Act 1967 (as amended) sets out the position whereby an employee may be disentitled to a redundancy payment for refusing to accept alternative employment). This very much depends on the facts of each case however as to whether there has been an unreasonable refusal of an offer of suitable alternative employment, see McCann v St Laurence’s Hospital UD348/1988, Earley v Floorstyle Contracts Ltd RP382/2003, McMahon v Clare Civil Engineering Ltd RP387/2003 and McEntee v Beggan RP 60/2005.In an English EAT decision (Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156_ the English E.A.T., when considering the similarly worded provisions of the British legislation, said, that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee’s refusal depends on factors personal to him and is a subjective matter to be considered from the employee’s point of view”.The above decisions are a summary of the facts in the cases involved. The author accepts no responsibility for any errors or omissions in respect of the case summaries and any commentary does not purport to be legal advice. Specific legal advice should be sought in respect of any issues arising.