Vladislav Sedlacek -v- Floxson Property Management Ltd (UD 2087/2009)
Introduction
In our February edition of the Bottom Line Express we considered the employment position in respect of gross insubordination in the wake of the media fiasco that surrounded professional footballer Carlos Tevez’s refusal to play for his club in a cup match. In that article we considered the rules surrounding gross insubordination and how and when an employer may justify dismissal in such circumstances. Accordingly it was interesting to come across the recently published EAT case of Sedlacek -v- Floxson Property Management Ltd which concerned the dismissal of an employee as a result of his failure to follow a management instruction to spray weed-killer. He had refused to do so, despite express management instruction, on the basis that he was not provided with what he deemed to be suitable protective equipment. Ultimately the employee was successful and the EAT awarded €43,000 in compensation. Thus, the EAT’s decision worth considering in full in respect of their view that whilst an employee may have committed an act that the employer considers to be gross misconduct it may not justify summary dismissal when one takes into account the employee’s reasons for committing that act.
Background to case
The employee had worked for Floxson Property since 2006 as a handyman/gardener. He stated that previously he had been asked to spray weeds around the shopping centre and this had resulted in him suffering from a headache, nausea and perspiration. He had informed the old Centre Manger of this and was advised by the Manager not to use the chemicals in future if they made him sick. The then Assistant Manager was aware of the situation and subsequently took up the position of Centre manager in 2008.
In June 2009 the employee had again informed the current Centre Manager that the last time he had sprayed herbicide that he was left feeling sick. Notwithstanding this, the centre manager instructed him to spray weeds around the shopping centre. After the employee stated that he would only do so if he was provided with proper safety gear he was told by the Centre Manager to go home. The employee walked out of the workshop and stated that the Centre Manager told him he was suspended with pay until stating that the employee had not been suspended the employee but that he was sent home and told to return to work the following Monday. The employee alleged that he had not received any contact about working on the Monday so he didn’t attend for work whereas the employer argued that the employee had been specifically instructed on the day he was sent home that he was to turn in for work on Monday and as such he didn’t require a call. The next day the claimant returned to work and the Centre Manager put him on light duties and on Wednesday the CEO met with the claimant and held a disciplinary hearing
Disciplinary Hearing
At the disciplinary hearing the CEO had a pre-prepared written warning with him which he intended to issue to the employee but during the hearing the employee made an accusation of bullying against the Centre Manager. The Centre Manager was later suspended that day and reinstated the following day following the CEO conducting interviews with three other employees regarding the allegation.
The employee was invited to a further meeting in the presence of the CEO and the Centre Manager during which he stated that he was not going to be bullied into damaging his health and safety. After making this statement the CEO formally suspended him and handed him a prepared verbal warning letter due to his failure to carry out one of his duties. Two weeks later, a disciplinary hearing was held on the 18th June 2009 with the CEO and a Director present. The employee was offered the right to bring someone with him but he declined. The key issue here was that the employee was asked if he would ever take instruction from the Centre Manager in future and he replied that he would not. The CEO therefore felt that he had no alternative but to dismiss the claimant and accordingly issued a letter of dismissal to him on the 22nd June 2009. During the EAT hearing the employee accepted that he said he would refuse to take instruction from the Centre Manager but stated that he made it quite clear that this was only the case if the instruction would have an impact on his health. Thus, he maintained that he would take instruction and that he was anxious to talk and resolve matters.
EAT Decision
In their decision, which was unfortunately quite sparse in content, the EAT noted that there was significant conflict in the evidence given by both sides at the Tribunal hearing. However, the EAT ultimately preferred the evidence of the employee and went on to state that “the reason for the claimant’s dismissal by the respondent was wholly or mainly for his refusal to spray weed killer without protective equipment.” The EAT therefore deemed this dismissal to be unreasonable and determined that the employee was entitled to €43,555 in compensation on the grounds that he was unfairly dismissed.
Conclusion and Analysis
Generally speaking an employer can consider the option of dismissing an employee if there is a point blank refusal to carry out a reasonable management instruction. However, if an employee does refuse to follow a management instruction then the employer must objectively consider whether or not that instruction was actually reasonable. In this respect it’s worth noting the decision of the Court of Session in the UK in the case of Macari -v- Celtic Football and Athletic Co Ltd [1999] IRLR 787 where it was held that employees are not obliged to comply with instructions that have been given in bad faith in circumstances where the employer was ill-disposed to the employee and the “instruction was issued to the employee in bad faith to the degree that it was manifest that the instruction had not been issued with a genuine desire to avail the employer of the employee's services under the contract of employment but rather to embarrass or harm the employee.” In this weed-killer case one must consider if it was reasonable for the employer to ask the employee to spray weed-killer when the employer knew the employee suffered from headaches, nausea and perspiration the last time he had done so. Similarly, one ought to consider whether or not it was reasonable for the employee to refuse to comply with that instruction. I think most people would agree that the instruction wasn’t reasonable and that it was reasonable for the employ to refuse to put his health at risk. Essentially employers cannot just point blank apply disciplinary rules for misconduct without considering the employee’s mitigating circumstances.
Employers should seek advice from Peninsula Business Services if they are faced with a potential issue of gross insubordination as the financial repercussions on the employer might be quite significant. Please phone the 24 Hour Advice Service on 01 8555050 and one of our experienced advisors will be happy to assist.
