A former general operative at a beef processor has failed in his unfair dismissal claim, after he was fired for “serious acts of insubordination”, including ignoring an instruction from a manager to return to work after he left the production line without permission.
This case outlines the numerous issues reasonable employers face today. Implementing correct procedures enables the reasonable employer to correctly dismiss incompetent workers. Following established procedures and utilising mandatory guidelines gives both sides the right to natural justice. When dealing with an issue of an insubordinate worker – what should a reasonable employer do, and how they should they do it while still maintaining best practice.
An insubordinate worker is a worker who defies authority by refusing to obey orders and this may be classified as an act of gross misconduct. If found of gross misconduct the employee should be immediately suspended depending an investigation on a prima facie basis. The key point of view from the courts is not to see if it is classified as gross misconduct but to determine whether it was substantial grounds to dismiss and to measure what a reasonable employer would do in the same position.
The complainant in this case worked for the company for a total of 13 years broken service. His most recent period from 2009 to 17th November 2016 when the employee alleged received his second complaint of gross misconduct. The first on the 6th of October for a similar case. Based on November’s complaint, it is alleged that he displayed acts of insubordination towards management and disappearing from work which ultimately led to his dismissal. The employer stated during the courts proceedings that they engaged in a process in line with best practice and delivered the complainants right to natural justice.
The complainant argues this point however, on a procedural error that he had never received witness statements, when a letter stated that he had. The complainant argues the point that he simply went to the toilet while no manager was around, informing a colleague to cover for him which led to this dismissal case.
The employer stressed his implementation of best practice offering the respondent his right to representation during the investigatory meetings and even providing an individual interpreter to aid the employee. However, he attended with no representative. The complainant’s solicitor requested a postponing of the meeting to discuss the case, which the employer granted.
During this time, the complainant claimed that the employer did not use fair procedural grounds as he failed to take any submissions from other witnesses and failed to execute a cross examination. In the complainant’s view. the dismissal was totally disproportionate, and the employer failed to interview the appropriate people and that the process was “procedurally flawed.”
The adjudication officer (AO) at the time referenced the following cases in applying the test of reasonableness. These being “Leyland UK Ltd v Swift” in which the critical element being where one employer may be reasonable, another might be different. Along with “Hennessy v Read & Write Shop LTD”, they pointed out that in holding an investigatory meeting alone was an act made by a reasonable employer.
Furthermore, the AO concluded that because the complainant left the grounds without any permission from staff, it was sufficient grounds to justify the dismissal. He also found that the employer had an established grievance and disciplinary procedure, as the complainant was given enough notice and was made aware of disciplinary meetings and of the investigation itself.
It was the complainant’s own decision not to bring a representative. It also found based on the witnesses reports that the complainant had received their statements. While not perfect, the AO concluded that the dismissal was of a sufficiently high standard and granted the case in favor of the employer thus dismissing the employee on grounds of a fair dismissal.
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