Martin -v- Usher Insulations Limited(UD 1266/2010)
This case concerned a crew leader who was dismissed by the insulation company he worked for on the basis that he had taken time off to attend the funeral of a friend despite being specifically instructed that he was obliged to attend for work on the day in question and that his leave request had been refused. The subsequent decision of the Employment Appeals Tribunal is worth considering in respect of their views on what constitutes gross misconduct and how employer ought to conduct a disciplinary process.
Background to the Case
The employer in this case was involved in a contract for the ESB in Galway and this contract represented the only work available to the Company at that time. Given that the work was based in Galway but the Company was based out of Dublin all employees were informed that they were obliged to stay overnight on site. Given such limitations the employer had informed all staff that time off for funerals was permitted for immediate family only and this policy was also laid out in the company handbook, which the claimant employee in this case had received and signed for.
On January 18th 2010, the claimant learned of the murder of his friend and subsequently informed a director and a manager from head office that he wished to attend the funeral. This request was declined due to limited numbers of staff and because the Company would lose an entire day’s work which would upset their contractor, the ESB. Upon learning that the employee still intended to take the day off, the head office manager reiterated to him that he could not have the time off but the employee adamantly stated that he would take the day off anyway. The manager then spent the rest of the day attempting to re-schedule the work, to no avail, and their clients were not pleased.
On the day of the employee’s unauthorised absence, the employer checked the employee’s “to-do-lists” and noted that 22 inspection reports, carried out by an independent investigator, indicated that various work had not been carried out completely by the employee and had, in certain instances, resulted in damage “of a very serious level.” The employer had to send another person to Galway to inspect the work and carry it out properly. The employee’s poor work included a failure to insulate pipes and this was deemed to be “sacrilegious” given that at the time in question Ireland was suffering from an extremely severe cold snap. This poor performance resulted in the pipes bursting which caused the employer to suffer additional costs. The employer, as a result of the employee’s unauthorised absence, also lost two private jobs that same day and lost the Galway ESB contract and they were subsequently unable to acquire any further contracts with them.
Disciplinary Hearing
The employer sought legal advice wrote a letter to the claimant on January 27th 2010, inviting him to attend a disciplinary hearing. The letter detailed the allegations made and invited him to be accompanied by a trade union representative or colleague. He was also furnished with a copy of the employer’s disciplinary procedure. The employee attended the hearing without representation and, as stated at the EAT, “due to the fact that he had taken a day off to attend a funeral when already knowing it had been refused and failing 22 inspections by the ESB with no clear answers why this had happened, he was informed he was dismissed.” The employee was given the opportunity to appeal this decision within 5 days.
Appeal Hearing
The claimant appealed the decision to dismiss him and the appeal was carried out by a Director of the company who was not involved in the disciplinary process to date. The Director examined all the letters, reports and notes and decided to uphold the decision to dismiss the employee. However, at the EAT the claimant stated that he felt as though he Director was “just going through the motions at the appeal hearing” and that as a result he didn’t get a fair rehearing.
Compassionate Leave
As a general rule it is worth noting that employees do not have a legal entitlement to compassionate leave; it is generally at the discretion of the employer to allow an employee compassionate leave. This applies even in respect of immediate family bereavements although it would normally be the case that employers would give such time off.
EAT Decision
At the EAT the employee accepted that he had signed a contract of employment and was aware that absence without leave was a serious breach. Taking this into account the EAT considered (a) whether or not the employer followed a fair disciplinary procedure and (b) whether or not the employee’s conduct amounted to gross misconduct warranting summary dismissal.
In respect of (a) the EAT found that the employer had not properly investigated the incidents in relation to the Galway contract and relied solely on the inspection reports of a third party. They suggested that these should not have been accepted without the employer conducting their own investigation into their validity. Secondly, they noted that the employer had departed from its own agreed disciplinary procedure by not following steps 1 to 3 and that this should only happen in cases of gross misconduct.
In respect of (b) the EAT considered whether or not the conduct did amount to gross misconduct. The EAT held that the employer’s justification skipping to stage 4, namely due to the severity of the issues at hand, was unsatisfactory and they cited the lack of convincing evidence to this effect, particularly where other employees beside the claimant were to carry out the works for the Galway contract. The EAT applied the test laid down in the UK case of British Leyland UK Ltd. -v- Swift [1981] IRLR 91 to determine whether or not the decision was fair and reasonable:- “the correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view.” In the application of the British Leyland test, the EAT determined that it was not reasonable to move directly to stage four of the disciplinary procedure and that the employer had overreacted to the gravity of the employee’s actions.
Due to the unreasonable actions of the respondent in carrying out the disciplinary process, the EAT found that the claimant was unfairly dismissed. The EAT concluded however, that the claimant had contributed to his dismissal in a number of ways in that he clearly breached the employer’s policy on absence without approval, a policy of which he was plainly aware, and because there were undoubtedly issues relating to the standard of the employee’s work on the Galway contract. Taking all considerations into account, the Tribunal awarded the claimant the sum of €5,000 by way of compensation under the Unfair Dismissals Acts 1877-2007.
Conclusion
Despite the fact that the employee clearly engaged in misconduct and did not have a right to attend the funeral, such issues seem almost incidental in this case when compared to the importance placed by the EAT on following a fair disciplinary process. An employer will find themselves vulnerable to an Unfair Dismissals claim where ‘natural justice’ is not adhered to and every step of the disciplinary process must be carried out to ensure fair procedures. For example, in the case of Vanfleet Transport Ltd. -v- Mark Murphy (25 November 1988, unreported) the Circuit Court recognised the fact that an “employer must gather full facts before taking disciplinary action”. Indeed, in the case of Vita Cortex Ltd. -v- Dourellan (UD 1031/1992) the EAT found this to be a major flaw in a disciplinary procedure and ordered that the employees be reinstated to their role as their dismissal was unfair. Similarly the EAT held in Ryan -v- CIE (UD 27/1984) that regardless of the seriousness of the allegations made against the employee, there is a duty on the employer to fully investigate the circumstances surrounding the alleged offence. Indeed, had the employer done this the EAT may have reached a much different conclusion and found the dismissal to be fair.
Thus the points that an employer should glean from this case are as follows:
- Ensure that a full investigation is carried out by an employer before taking disciplinary action
- Ensure that the employer gives due consideration to their own stated disciplinary procedure
- Take a step back remove emotion from a disciplinary matter and consider what outcome would a third party issue in the circumstances.
