ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000503

Complaint for Resolution:

At:                          Workplace Relations Commission, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 30/03/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background. 

The Complainant was employed from 26^th April 2011 until the employment was terminated with notice on 7^th August 2015. The Complainant was paid €390.00 gross per week and he worked a 40 hour week. The Complainant was issued with a written statement of his Terms and Conditions of Employment which included the Grievance and Disciplinary Procedures of the Respondent. The Complainant referred a complaint to the Workplace Relations Commission on 10^th November 2015 alleging he had been unfairly dismissed.

Summary of Respondent’s Position.

The Complaint commenced his employment with the Respondent in April 2011. A copy of his statement of Terms and Conditions of Employment provided to the Hearing.

The Respondent sent a letter to all employees, including the Complainant on 22^nd May 2013, following complaints from clients of the Respondent, in relation to requests for “tips”. A further letter was sent on 18^th October 2014 in relation to the same issue.

The Respondent held a meeting with the Complainant on 28^th October 2014 in relation to a number of specific complaints from clients. The Complainant apologised and stated he understood the reason why he was being issued with a Final Written Warning. A Final Written Warning was issued by letter dated 28^th October 2014, to remain on his File for a period of 12 months. The Complainant did not appeal this warning.

There was a further specific complaint from a client on 15^th July 2015. The Respondent held a meeting with the Complainant on 31^st July 2015 and he was suspended on full pay for one week. He was informed why he was suspended. Following an internal discussion it was decided that the breach by the Complainant and the fact that he had a final written warning on file warranted his dismissal. The Complainant was informed by letter dated 3^rd August 2015 with a right of appeal.

The Complainant appealed his dismissal by letter 12^th August 2015 and he was also provided with a copy of the Employee Handbook which includes the Disciplinary Procedures as requested by him.

The Appeal was heard on 15^th September 2015 and the Complainant was represented by his Trade Union UNITE. His Trade Union raised personal issues in relation to the Complainant which the Respondent stated they had been aware of for some time and was the reason the Complainant was issued with a Final Written Warning rather than being dismissed in October 2014. The outcome was to uphold the dismissal.

Summary of Complainant’s Position.

The Complainant was suspended by the Respondent on 31^st July 2015 for one week pending further discussions and this was confirmed by letter dated 3^rd August 2015. However no specific allegations are made in this letter just a reference to continuing to do “certain things”. The Respondent did not conduct an investigation or hold a Disciplinary Meeting but rather he received a phone call from the Respondent on 7^th August 2015 to inform him his employment was terminated with immediate effect. This was confirmed in writing to the Complainant on 11^th August 2015. The Complainant appealed this decision to terminate his employment. The Complainant was issued with his P45.

The Complainant again wrote to the Respondent on 23^rd August 2015 advising them of his appeal. He was advised this was arranged for 15^th September 2015.

The Appeal Hearing was conducted by the same Manager who suspended him and then dismissed him. He was notified by letter dated 6^th October 2015 that his appeal had failed.

UNITE argued that the Respondent had failed to conduct an investigation; to hold a Disciplinary Meeting with the Complainant; the Respondent failed to observe its own Disciplinary Procedures; the Respondent failed to allow the Complainant a fair hearing and to be represented prior to the decision to dismiss. The Manager of the Respondent suspended the Complainant, made the decision to dismiss the Complainant and then conducted the appeal in relation to this dismissal.

The Complainant provided evidence from the Department of Social Protection, as requested, which confirms that he has been in receipt of Jobseekers Benefit from 1^st August 2015 to 1^st April 2016

Findings.

On the basis of the evidence and written submissions from both Parties I find as follows:

1. The facts in relation to this dismissal are not in dispute between the Parties.
2. Both confirmed that the Complainant was suspended on full pay on 31^st July 2015 and that there was a Final Written Warning on his File since October 2014. There is a dispute between the Parties in relation to the suspension of 31^st July 2015 with the Respondent stating that he was informed of the reason for his suspension at a meeting on 31^st July and the Complainant stating that the letter dated 3^rd August refers to his suspension for “certain things”
3. Both Parties confirmed that the Respondent did not hold an investigation meeting or a Disciplinary Meeting with the Complainant prior to the decision to dismiss him being made at a management meeting scheduled for 5^th August 2015.
4. Both Parties confirmed that the Respondent phoned the Complainant on 7^th August 2015 to inform him of the decision to dismiss and this was confirmed by letter dated 11^th August 2015.
5. The Complainant was afforded a right of appeal and the decision to appeal the dismissal was made by letter dated 11^th August 2015.
6. The Appeal Hearing took place on 15^th September 2015 and the Complainant was accompanied by his Trade Union Representative UNITE.
7. Both Parties also confirmed that it was the same Manager who suspended the Complainant, took the decision to dismiss and heard the appeal.
8. S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000, provides guidance to Employers in relation to the procedures that should be adopted by an Employer in the context of the dismissal of an employee to ensure fair procedures and natural justice.
9. However I also note that the Complainant while he raised issues in relation to procedural issues in the context of his dismissal he did not deny the allegations against him that led to his dismissal.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I declare the complaint of unfair dismissal is well founded on the basis that the Respondent did not apply fair procedures and natural justice to the process and procedures they applied to his dismissal. However I find that the Complainant, who was on a Final Written Warning, on the date of his dismissal, did contribute to his dismissal in that he did not deny any of the allegations made against him. This must be taken into account as set out at Section 7 (2) (b) of the Act

It has been established by the Supreme Court in its Decision in State (Irish Pharmaceutical Union) v Employment Appeals Tribunal (1987) that the views of the parties should be sought on the issue of redress prior to a decision. I sought the views of both Parties and compensation was the agreed remedy.

I order the Respondent to pay the Complainant compensation of €5000.00 (five thousand euro) within 42 days of the date of this Decision.

Date:             9^th May 2016