ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003210

Complaint for Resolution:

Date of Adjudication Hearing: 01/03/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, 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.

Respondent’s Submission and Presentation:

The respondent was represented by the owner who submitted that he was the only person in the company with authority to dismiss an employee.

He said that the complainant had been unhappy for some time in his work and that following the incident with the supervisor when it alleged he was dismissed the complainant should have contacted him, (the owner) to clarify matters.

He did not witness the incident which gave rise to the complaint.

Complainant’s Submission and Presentation:

The complainant was a driver for the respondent logistics company.

On Friday January 8^th 2016 he was asked to take a load to Cavan from Dublin in a vehicle which he says was inadequate for the load. The passenger seat had to be adjusted in order to accommodate the load.

He set out on the journey but after a short time the load shifted, lurching towards the driving position in a manner that was dangerous. He returned to base and following some discussion about alternative ways of re-organising the load which were unacceptable to the complainant he was told by his supervisor to ‘go home’ and that he should call to collect his P45 the following Monday.

He telephoned on Monday regarding the P45 and was told it would be ready the following Thursday. He duly collected it and the employment terminated.

Findings and Conclusions

As noted above the respondent was represented at the hearing by the owner, who had not witnessed any of the events, and a manager who was not even employed by the respondent at the time of the incident. This was not a promising approach in a matter where the Unfair Dismissals Act 1977 makes it clear that the burden of proof in such cases rests with the employer, when neither of those attending the hearing had any direct involvement with the incident which gave rise to the dismissal.

The submission made by the owner that some obligation fell on the complainant to pursue the matter demonstrates a further lack of insight into the obligations that fell on him in such situations. The company owner was not in a position to contest the basic facts as presented by the complainant and had not brought to the hearing the key witness to the central event; the supervisor who allegedly ordered the complainant home and told him to collect his P45.

Therefore, I find with no difficulty that a dismissal took place. No other construction can be placed on the words used by the supervisor and I accept fully the evidence of the complainant in that regard. It is further underpinned by the failure of anyone in the company to interrupt the flow of events which followed on the following Monday. The suggestion that an onus fell on the complainant to challenge the actions of the supervisor is without merit, and most especially so by way of any mitigation of the actions of the respondent.

Our law and jurisprudence is clear in these matters and relatively simple. A person may only have their employment terminated when good cause arises to bring it into contention.

This must then be followed by a fair process in which the case is properly heard, with due regard to the rights of the complainant and any other party. And, finally, the sanction must be balanced and proportionate having regard to all the circumstances.

Applying these criteria to the current case results in a very clear indictment of the respondent’s actions, or failure to act.

I place no weight on the argument (even if only made half-heartedly) that in some way the supervisor did not have authority to execute the dismissal. The fact is that he did do so and at some level in the administration of the company it seemed subsequently to glide through ‘on the nod’. The respondent has an obligation to ensure that his managers understand whatever limitations he has placed on their authority in this regard if such limitations as he described exist.

He bears full responsibility for the failure to do so. It is very hard to believe that in the processing of the P45 that no checks were made by the company management or that an opportunity did not arise to review the situation. It suggests either a lack of control being exercised by the owner in a matter in which he submitted he had exclusive authority, or an indifference to their stated authority being exceeded by one of his managers.

I find that the dismissal was unfair and represented a very serious breach of the complainant’s rights. His losses arising from the dismissal were stated as being just over €15,000. He secured new employment in July 2016.

In view of the conduct of the employer in this case and having regard to the breach of the complainant’s rights which I place at the extreme end of the spectrum of unfairness I can see no basis for mitigating the complainant’s entitlement to compensation.

It was a summary dismissal without either cause or process and I make my award accordingly on the basis of the provisions of section 7 of the Unfair Dismissals Act and, as provided for in by that Act, I consider it to be entirely just and equitable in the circumstances of the case. .

Decision:

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.

The dismissal was unfair and I uphold complaint CA-00004776-001 and I award the complainant €15,000.

Dated:   27^th April 2017