ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001194

Complaints for Resolution:

Date of Adjudication Hearing: 09/03/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

Pursuant to the Unfair Dismissals Acts 1977-2007 and the Workplace Relations Act 2015 (as amended), following the referral to me by the Director General of this complaint of Unfair Dismissal contrary to Section 8 of the Unfair Dismissals Act 1977 and a complaint under Section 11 of the Minimum Notice & Terms of Employment Act 1973, I inquired into these complaints and gave the Parties an opportunity to be heard and to present to me any evidence relevant to the complaint. I proceeded to hearing on 9^th March 2016. The Complainant was legally represented and the Respondent represented itself. The Respondent’s Managing Director indicated that he was happy to proceed without legal representation and a number of witnesses attended on its behalf. Submissions and supporting documentation from both Parties were received before and during the hearing and all oral evidence, submissions and documentation have been taken into consideration. I also indicated that I would be relying upon the key statutory provisions and relevant case law.

Background to Claim:

The Respondent operates an excavation company which undertakes excavations and digging holes for various contractors and subcontractors. The Complainant was employed by the Respondent as a General Operative. He commenced his employment on or about 25^th October 2010 and he was dismissed on 17^th July 2015. The ground relied upon to justify the dismissal was that the Complainant was found to have brought a pole from a job back to his own premises instead of the Respondent’s yard as directed on behalf of a contractor. The fact of dismissal is not in dispute and the Respondent carries the onus of showing that having regard to all the circumstances, there were substantial grounds justifying dismissal. The Respondent contends that the dismissal was justified on grounds of the Complainant’s gross misconduct. The Complainant earned €2020 gross per month although the Complainant’s pay slips as submitted indicate that he was earning significantly more in March 2015. The Complainant contends that his dismissal was contrived by the Respondent and the procedures adopted were unfair and he is seeking full reinstatement to his job as a remedy.

1. Respondent’s Submission and Presentation:

Evidence of the Managing Director of the Respondent, Mr M

1. The Managing Director of the Respondent , Mr M, attended the hearing with a number of witnesses and indicated that he wished to proceed without legal representation. At the outset I explained the nature of a claim for Unfair Dismissal and the fact that the burden of proof rested with the Respondent to demonstrate that the dismissal was fair and so took its evidence first.

1. Mr M confirmed that the Respondent is a small limited liability Company with eleven staff at the time of the dismissal of the Complainant and is now down to nine staff. The Company undertakes excavations and digging holes for various contractors and subcontractors.

1. The Complainant was employed by the Respondent as General Operative for a period of almost five years from 25^th October 2010. Mr M described him as one of his most valuable employees and had not had any issue in relation to his work record until the circumstances giving rise to his dismissal on 17^th July 2015. Mr M confirmed that that whilst solvent the Respondent had been experiencing ongoing financial difficulties, and he accepted that the week before the incident giving rise to the Complainant’s dismissal he had indicated to him and another colleague who had since left that he would have to put them both on a reduced three day working week.

1. Mr M presented the Respondent’s position in a letter dated 5^th October 2015 to the Complainant’s Solicitors and in direct evidence. On Monday 6^th July 2015, the Complainant and a co-employee were dispatched to undertake a contract to remove a newly installed but unsuitable wooden pole and replace it with a new steel pole. Contractor A had employed Contractor B who had sub-contracted the job to the Respondent. On Tuesday 7^th July 2015, when Contractor B had requested the discarded pole for another job, it was noticed that the Respondent’s crane lorry was parked back in its yard after the job with no poles on board, and that no additional poles were present in the yard. The Foreman for the Respondent and the Complainant’s Line Manager, Mr F, had consulted with an employee from Contractor A, Mr A who had also been present at the job and he informed Mr F that he had instructed the Complainant to return the pole to the Respondent’s yard. Mr F then called Mr M to alert him as to the issue. He said it should have been clear to the Complainant that a newly installed wooden pole of this nature was the property of Contractor A and could only be taken with its consent.

1. On Wednesday 8^th July 2015, Mr F discussed the matter with the Director of Contractor B, Mr B who made it clear to Mr F that the incident must be fully investigated and in the event of an unsatisfactory explanation, that all necessary steps must be taken to prevent a recurrence. Mr B also stated that he was going to inform Contractor A of the situation and seek their advice. Mr M and Mr F discussed the matter and available options with a number of their clients. As the Complainant was working in Galway, it was decided to await his return on Friday 10^th July 2015 before asking him about the pole in question. On his return, Mr F had a meeting with him to enquire as to the whereabouts of the wooden pole and to why it was not returned to the Respondent’s yard as per Mr A’s instructions. He confirmed that it was the Respondent’s position that the Complainant had admitted that the pole had been brought to his own premises without any authority from either Contractor A or Contractor B. He had offered no explanation as to why the pole had not been returned to the Respondent’s yard. The pole was never returned to the Respondent’s yard. Mr F immediately suspended the Complainant.

1. On Friday 17^th July 2015, the Complainant was requested to attend a meeting with Mr M and Mr F at the Respondent’s offices and he was advised that having considered all the available facts and in the absence of an acceptable explanation and also having consulted with Mr A and Mr B, the Respondent was left with no option but to terminate his employment with immediate effect.

1. When questioned, Mr M confirmed that he considered the conduct in question as “theft or unauthorised possession of any property or facilities of the Company” amounting to gross misconduct justifying summary dismissal under the Company handbook. He confirmed that no complaint had ever been made by any of the parties involved to the Gardaí in relation to the pole nor had he sought to recover the pole from the Complainant’s premises. When Counsel for the Complainant put it to him that it was the Respondent’s practice to allow the Complainant to salvage disused poles for use on his farm, Mr M contended that this instance was different as the pole was barely used. He denied furnishing the Complainant with chainsaws to cut down the pole if necessary and was apparently unaware that it had been damaged during the dismantling process. It was also put to him that the Complainant had offered to return the pole when confronted by Mr F but was told that he was suspended and could not use the crane lorry required to bring it back. He denied that this was a set-up and the decision to dismiss the Complainant was a done deal as a convenient way to get rid of him when he needed to put employees on short-time. Mr M however accepted telling the Complainant that he had hoped he would resign in light of the complaint against him as he did not want to make things worse.

1. Mr M could not confirm whether the Complainant had ever been furnished with the Company handbook and said that it was available for the staff to view in the Respondent’s office. He confirmed that the Complainant had not been advised in advance that the meeting with Mr F on 10^th July 2015 was disciplinary in nature or advised of the option to have a colleague or a workplace representative present as required for Formal Disciplinary Procedures under the handbook. He had never sought to contact the Complainant to ask him about the whereabouts of the pole and had never questioned him directly in relation to the missing pole, leaving that to Mr F. He also confirmed that no statements from Mr A or the other former employee present at the job in question had been obtained and that the Complainant had not been afforded any opportunity to challenge Mr A’s account or call any rebutting evidence. He had never asked the former employee also present for his version of events. He preferred Mr A’s version of events over that of the Complainant. He contended that the only way to prevent a recurrence was to dismiss the Complainant. Notwithstanding not having spoken to the Complainant, he had decided to dismiss him in advance of their meeting on 17^th July 2015 which lasted just 5 minutes. He confirmed that no minutes from either meeting were taken or retained. He also confirmed that no reasons for the Complainant’s dismissal were furnished to him in writing and he was never offered an appeal as provided for in the handbook. When questioned about the lack of fair procedures leading to the Complainant’s dismissal, he said: “I did not know how to finish it off.” He accepted that he had not adhered to fair procedures and said that he would therefore have to face any consequent order of the WRC. In relation to the remedy of reinstatement sought by the Complainant, he said that his work had been ‘reabsorbed’ and he could not afford to re-employ him. He also said that he did not believe that the Complainant was entitled to payment in lieu of minimum notice in the circumstances. He denied that any prospective employer in respect of whom the Complainant had subsequently sought employment had contacted him to confirm a reference. He confirmed that he bore no ill will to the Complainant.

Evidence of Mr A, Clerk of Works for Contractor A

1. Mr A confirmed that he was a clerk of works for Contractor A and his role is to liaise with the subcontractors to ensure that jobs are carried out properly. He confirmed that he had been overseeing the replacement of the pole in question on Monday 6^th July 2015. When the Complainant had asked him “What’s the story with the pole?” at the end of the work day, he told him to bring the wooden pole back to the yard. He presumed that this would be Contractor A’s yard. He confirmed that if anyone wanted an old pole they would have to go through him to get their permission from Contractor A but he did not keep a log or record of old poles. He confirmed that Mr F had rang him the following day looking for the pole as it had not come back on the lorry to the Respondent’s yard and he told him what he had said to the Complainant. He denied being aware of the previous practice of giving away old poles which had been replaced.

1. When questioned by Counsel for the Respondent, Mr A confirmed that he was attending at the hearing and giving evidence in a personal capacity and had taken a day off work to do so without Contractor A’s knowledge and despite the fact that he was acting in an employment capacity in relation to this matter. He denied being paid to attend the hearing and said it was just “a day out”. He also confirmed that he had not informed his employer of the missing pole notwithstanding his knowledge of the allegations that the Complainant had wrongfully taken it. He admitted that he had previously engaged in a practice of selling on old poles to a farmer for €20 each without his employer, Contractor A’s knowledge. He also admitted propositioning the Complainant to sell on old poles to a buyer he had and to split the money between them but agreed that the Complainant had refused to enter into this arrangement. As the Complainant had the only means of transporting the poles with the lorry, he would have required his assistance to enter into this arrangement. He also admitted receiving a gift of €50 cash and a bottle of Baileys from Mr F at Christmas as a thankyou gift and not as a backhander.

Evidence of Director of Contractor B, Mr B

1. Mr B confirmed that he was the Director of Contractor B and as such, was responsible for accounting for old poles recovered from jobs for Contractor A. He had required the wooden pole in question for another job and had rung Mr F on Tuesday 7^th July 2015 looking for it and was told it should be in the Respondent’s yard. When he contacted Mr F again on the following day, he was told that the Complainant had taken it despite being instructed to return it to the yard. He denied telling the Respondent that all necessary steps must be taken to prevent a recurrence in precisely the terms set out in Mr M’s letter to the Complainant’s Solicitors. He admitted contacting Contractor A to discuss the situation and had last been in contact shortly before the hearing. He said that he was unaware of Mr A’s arrangement of selling on old poles on the side or of his proposition to the Complainant to enter into a similar type arrangement. When asked whether Mr B was at a loss arising from not having the pole available for a job, he confirmed that he had been able to source another pole and was not out of pocket as such.

Evidence of Foreman for the Respondent, Mr F

1. The Complainant’s Foreman and Line Manager, Mr F, confirmed a similar version of events as given by Mr M, save that he said that a decision had not been made to dismiss the Complainant in advance of the second meeting where he was dismissed on 17^th July 2015. He had not experienced any previous issues with the Complainant’s work and agreed that there was a practice whereby discarded poles from jobs were taken away by employees for their own use. However he denied noticing the Complainant’s use of the old poles for fencing on his farm during a social visit to his home. He confirmed that the Complainant had trained him on key machinery so that he could undertake all his duties and that he had spoken to him and other staff about the need to put them on a three day week. He confirmed the sequence of events leading up to the Complaint’s dismissal in similar terms as the evidence given by Mr M. In relation to the meeting he had with the Complainant on Friday 10^th July 2015, he said that the Complainant had offered no explanation for taking the pole. He suspended him on pay for a week whilst the matter was being investigated and had offered to drive him home. He had no reason to disbelieve Mr A’s account and when asked, could not remember if he had asked the other former employee present at the job for his account of what had occurred. It was put to him that he had not adhered to fair procedures and he admitted that he had not given the Complainant any advance notice of the disciplinary nature of the meetings in writing or advised of his entitlement to have someone attend and had not kept any minutes. He said that at the second meeting of 17^th July 2015, he asked the Complainant again for an explanation for the missing pole and when none was forthcoming, he was dismissed for theft amounting to gross misconduct. Despite being in telephone contact with the Complainant about other jobs during that week, he confirmed that at no stage had he asked him about the missing pole until his return from Galway. In this respect, he had waited until the Complainant had finished the job in Galway before suspending him as he was “needed”. Whilst he agreed that he had furnished the Complainant with chainsaws on 6^th July 2015, he said this was for cutting down another pole.

1. Neither Mr F or Mr M could shed any light as to the signature on the Complainant’s amended employment contract but nothing really turns on this for the purposes of this claim.

2. Complainant’s Submission and Presentation:

2. The Complainant confirmed that he was employed by the Respondent as a General Operative for a period of almost five years from 25 October 2010 before he was summarily dismissed without notice on 17^th July 2015. His contract had been amended on 9^th January 2013 and he had obtained a copy of that contract pursuant to a Data Protection request. Whilst he takes no issue with the terms and conditions contained therein, he gave evidence that it was not his signature on the contract and in fact he was not even in work on that day. He also denies ever previously receiving the Company handbook containing the Formal Disciplinary Procedures.

2. The Complainant also confirmed that his employment with the Respondent had been uneventful until early July 2015 when he and another former co-employee were told that they would have to be put on a three day week owing to a reduction in work. Upon speaking to other co-employees, he learned that this only applied to him and the former employee and expressed a view to his Foreman and Line Manager, Mr F that this should apply to all employees equally. The Complainant confirmed that originally only he could operate all of the machinery but he had trained Mr F up in relation to a key piece of machinery thereby rendering himself dispensable.

2. The Complainant also gave evidence of a practice by employees of the Respondent to give away old or damaged poles to anyone who requested them which he referred to as ‘retiring’ poles. This saved the Respondent the cost and inconvenience of disposing of them. The Complainant regularly brought old or damaged poles home and used them to build fences on his farm and provided photographic evidence of same. Mr F had visited his home and was well aware of this practice which he sanctioned. The Complainant’s wife also confirmed that Mr F was well aware of the fact that the Complainant salvaged old poles for use on the family farm having visited.

2. The Complainant gave evidence that Mr A had previously approached him requesting him to stockpile poles for him as he had the means to transport them with a view to selling them on to customers he had for them. The proposed arrangement was that a cash payment of €20 per pole would be split between him and the Complainant. The Complainant had refused to enter into this arrangement and said he wanted to continue using the poles for his fences on his farm.

2. The Complainant confirmed that on 6^th July 2015, he and another colleague were dispatched by Mr F to undertake a contract to remove a wooden pole and replace it with a steel pole. The job was uneventful save that the pole was damaged during the removal process. This was not unusual and in fact Mr F had provided them with chainsaws to cut down the pole if necessary. He asked Mr A, who was on site and overseeing the job, what he should do with the pole and was told to bring it back to the yard. He asked “What yard?” and Mr A responded: “If it goes back to your yard, I want a bit of that.” gesturing to his back pocket to indicate that he required a payment on the side. The Complainant refused to entertain him. He brought the pole back to his yard where it remains to this day and thought nothing more of the matter. He proceeded to undertake a job in Galway as directed by Mr F in the following days. He had been in contact with Mr F during the remainder of the week before his suspension and he never mentioned the pole.

2. The Complainant was therefore totally shocked when he was summonsed to a meeting with Mr F on Friday 10^th July 2015, where he accused him of not returning the pole to the Respondent’s yard when directed by Mr A and said that Mr B who had been looking for the pole had lost out on a job which it was required for as a result. He said he could get it but was told by Mr F that he would do no such thing with the Respondent’s lorry, it would not change anything, and that he was suspended with immediate effect and would be hearing from them. Mr A offered him a lift home but he used his motorbike. He had no idea that this was a disciplinary meeting and was not furnished with any details or statements relating to the complaint alleged against him or invited to bring along a work colleague. He was summonsed along to the second meeting of 17^th July 2015 with Mr F and Mr M, where he was told that they thought he would have resigned in the circumstances and was summarily dismissed without any notice. He confirmed that he had never been afforded a fair hearing or had any opportunity to challenge Mr A’s account. He had not received any letter confirming the reasons for his dismissal or entitlement to an appeal.

2. He also confirmed that the pole in question had remained on his premises and the Respondent had not sought to collect same. He produced photographs of the pole confirming it was damaged. He said that no enquiries had been made on behalf of the Respondent as to its condition. The witnesses for the Respondent questioned whether this was the same pole.

2. Notwithstanding the allegations of dishonesty made against him, the Complainant is seeking to return to his job as he is experiencing difficulties obtaining work elsewhere. He has been on Jobseeker’s Allowance since his dismissal and gave evidence of his efforts to mitigate his losses and secure alternative employment without success to date. As a result of losing his job he confirmed that he and his family were experiencing financial difficulties and had fallen behind with the mortgage. He had been offered one job and given start date but then received a call from the prospective employer to say that the job was no longer available. Given that the industry in question is quite small and close-knit, he believes that the circumstances of his dismissal are having an adverse effect on his ability to secure alternative employment.

2. Counsel for the Complainant submitted that his dismissal was unfair and contrived by the Respondent in a threatened lay-off situation to avoid its obligations and there was no adherence to any fair procedures. This was borne out by the fact that Mr F had waited for the Complainant to complete a job in Galway before suspending him in the hope that he would resign before dismissing him when there were lots of alternatives and also based on the conflict in evidence between the Respondent’s witnesses. The Complainant is seeking full reinstatement to his job.

3. Findings and Conclusions:

3. In relation to complaints of Unfair Dismissal arising from an employee’s conduct, the relevant legal provisions as contained in Section 6 of the Unfair Dismissals Act 1977 are as follows:

“6(1)- Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…(b) the conduct of the employee,

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

3. I am also guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) which requires that the procedures for dealing with disciplinary issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures. It is well established that an employee has a contractual and constitutional right to fair procedures (In Re Haughey [1971] IR 217), the extent of which will depend on the particular circumstances.

3. The applicable legal test arising from the aforesaid provisions for dismissals on the grounds of misconduct is comprehensively set out in the High Court Judgement of Mr Justice Noonan in The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241 as follows:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.

I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93: ‘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.’

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

3. Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress which may be afforded as follows:

“7(1)- Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.”

3. Applying the aforesaid applicable legal provisions and test, I have no hesitation in holding that a reasonable employer would not have dismissed the Complainant in the particular circumstances and hence the dismissal of the Complainant was unfair. In particular, I am satisfied that the Complainant’s dismissal was contrived and staged by the Respondent in a threatened lay-off situation to avoid its obligations in relation to redundancy or otherwise based on the following:

(i)    There is no dispute between the Parties that only the Complainant and former co-employee were threatened with lay-off shortly before the Complaint’s dismissal on 17^th July 2015.

(ii)   It is not in dispute that although previously one of the Respondent’s most valuable employees, since training Mr F in on all the machinery, he had become dispensable.

(iii)  There is no dispute between the Parties that there was a permitted practice of allowing employees of the Respondent to give away or use discarded poles from jobs.

(iv)  I accept that Complainant’s evidence including photographic evidence that he was allowed to take away disused poles from jobs for use on his farm and that the Managing Director, Mr M and his Foreman and Line Manager, Mr F were well aware of and sanctioned same.

(v)   I find Mr A to be a wholly incredible witness, not only because he was attending the hearing without sanction from his employer, Contractor A but also on the basis of his own admission that he had previously engaged in a practice of selling off old poles for cash on the side without the knowledge of his employer and had also approached the Complainant about entering into a similar arrangement with him which he had rejected. The finding of gross misconduct hinged on Mr A’s assertion that he had directed the Complainant return the pole to the Respondent’s yard but he had defied this Order. Unfortunately, Mr M chose to believe his account over that of the Complainant. However, I find the Complainant’s account much more credible in this respect. I have no doubt that Mr A was aggrieved when the Complainant refused to pay him for the pole in question and/or enter into the proposed arrangement and was therefore motivated to report the incident in the manner he did.

(vi)  Given the timing of the threatened lay-off, I further find that it was a most convenient time for Mr M and Mr F to turn what was a permitted practice into an issue of gross misconduct and this is evidenced by the following facts: Mr M and Mr F did not contact the Complainant when Mr B sought return of the pole in question for use on another job or seek its return when the issue first arose on Tuesday 7^th July 2015 as one would expect would be the natural response, and instead they waited until Friday 10^th July 2015 before Mr F confronted the Complainant and suspended him on the spot; if it was such a matter of concern, Mr F would not have waited for the Complainant to complete other work in Galway before suspending him; none of the Parties concerned had reported the matter to Gardaí or indeed to Contractor A on whose behalf the job was carried out; Mr M and Mr F had not actively sought the return of the pole in question and had no apparent interest in its return; Mr M’s and Mr F’s own evidence that they thought the Complainant would resign when confronted with the allegation and the admitted absence of any fair procedures in dismissing him.

3. For the purposes of deciding the appropriate remedy, it is necessary to consider further the Respondent’s conduct of the dismissal process having regard to what would be reasonable in the circumstances. At the hearing and notwithstanding the Company handbook, Mr M, as Managing Director of the Respondent seemed completely unaware of what was expected from him as an employer in relation to the necessity for adherence to fair procedures in relation to disciplinary issues and admitted that there had been a complete absence of same. It is difficult to imagine a disciplinary process more devoid of fair procedures. In particular, I am satisfied that the Complainant was never furnished with the Company handbook setting out same and it is simply not good enough to say that it could have been accessed in the Respondent’s office. Section 14 of the Unfair Dismissals Act 1977 requires an employer to “…not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.” This was not done in the instant case. In any event, there was no adherence to the disciplinary procedures set out in the handbook or indeed to any procedures. In particular, the Complainant was not given any notice of the disciplinary nature of the meetings of 10^th and 17^th July 2015, he was not informed of his entitlement to have representation, no minutes of the meetings were taken, the one other witness present was not interviewed and no statements were taken from anyone or details of the allegations furnished in writing in advance of the meetings, he was not afforded the opportunity to confront his accusers or present evidence in his defence, alternative forms of dealing with the matter were not given any consideration and he was not furnished with reasons for his dismissal or offered an appeal. Overall, this case provides a very good example of how not to dismiss an employee and one would like to believe that lessons will be learned from this complaint and its consequences.

4. Decision:

4. 1  For the aforesaid reasons, I am satisfied that the Respondent has failed to discharge the onus of establishing that there were substantial and reasonable grounds justifying the dismissal in the circumstances and therefore find that the Complainant was unfairly dismissed on 17^th July 2015.

4. 2  Notwithstanding the nature of the serious and unfounded allegations made against the Complainant, I note that as he had been unable to secure alternative employment in what is a niche market, his preferred remedy is reinstatement. I am also mindful that relations appeared fairly congenial between the Parties despite the serious nature of the allegations and also that the Complainant had been a valued employee. In circumstances where it is not disputed that the allegations against the Complainant were discussed with third parties, it was submitted that the suspension and dismissal in the instant case may have damaged his reputation and standing and vindication is required. Having found that the Complainant is blameless, I am cognisant of the need to do justice. I am of the view that an award of compensation would fall far short of providing adequate redress in the circumstances and the only appropriate remedy is re-instatement to the same position with the Respondent from the date of dismissal, being 17^th July 2015. I have canvassed this with Mr M and whilst financial difficulties were cited without any supporting evidence, I am satisfied that there is no practical impediment to the Complainant’s reinstatement. Specific statutory provisions and procedures are in place for employers who find themselves in financial difficulty which should be followed and not allowed to be circumvented in such a manner. For the avoidance of doubt, the Complainant should not suffer any loss of terms and conditions and the pay that he would have received for his period out of work until the date of his reinstatement is accordingly due and owing. Having so found, an award under Section 11 of the Minimum Notice & Terms of Employment Act 1973 is therefore not required.

4. I therefore order reinstatement pursuant to Section 7(1)(a) of the Unfair Dismissals Act 1977 and make no order under Section 11 of the Minimum Notice & Terms of Employment Act 1973.

Dated: 1^st June 2016