ADJ-00005517

Complainant

Respondent

Anonymised Parties

A Book Keeper

A Letting Agency

Representatives

Purcell Kennedy Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00007681-001

18/10/2016

The complainant was employed as a Book Keeper by the respondent, which is a property management company, from July 27th 2014 until August 18th 2016 when the employment terminated.

The respondent says the termination was by mutual agreement.

The respondent says that in the initial stages of the employment all went well and relations were good. However, from 2016 on difficulties arose particularly in relation to the procedures for refunding tenant deposits.

The respondent gave direct evidence of a number of conversations he had in January and February 2016 with the complainant about improvements in performance he required. On February 25th he says he told the complainant that ‘things had to be tighter’.

There were further meetings on March 30^th and May 26th 2016 at which he sought a breakdown of deposits within forty-eight hours and they met again on June 6th, July 26th and 28th at which issues relating to the way on which deposits were refunded were discussed.

The respondent says he administered an oral warning to the complainant on April 9th and submitted that the complainant’s attempt to assert that he had not been made aware of the difficulties is contradicted by this. This also raises questions about his credibility in respect of the events on the day of the termination.

He says that at various stages the complainant told him that he (the complainant) was ‘tired of the work’.

Evidence of the unsatisfactory nature of the complainant’s work was also introduced in the form of rounded, and therefore inaccurate figures he supplied to the respondent.

In respect of the conversation on August 18th which led to the termination of the employment he brought again to the attention of the complainant a problem in relation to the refund of deposits.

On conclusion of the discussion there was mutual agreement that the employment relationship should end that they both shook hands.

The respondent says that the complainant had no issue with the termination at the time and subsequently embarked on a complaint as an act of retaliation.

The complainant does not dispute the facts outlined above but says the meetings to which the respondent referred were routine business meetings.

He rejects the claim that an oral warning was ever administered to him.

He accepts that he was getting tired of aspects of the work but this has no more significance than that; many workers find aspects of their work unpleasant.

He says his employment was terminated without any notice or fair process. He did not consent to it and the handshake is not evidence that he did.

At the heart of this complaint is the meeting of August 18th and what exactly transpired at it.

There is a stark conflict in the evidence and no corroboration of either version of the event was available. There were no witnesses to the actual conversation.

The law and jurisprudence in relation to unfair dismissal is relatively simple and quite clear.

The burden of proof to show that a dismissal was fair rests with the employer who is, after all, terminating a contract of employment. The Unfair Dismissals Act requires that there be ‘substantial grounds’ justifying the dismissal, (Section 6).

Not only must the employer demonstrate that there were ‘substantial grounds’ but must also demonstrate that, in doing so, they followed a fair process.

Central to this is a requirement that an employee must be aware of any deficits in his conduct or performance where this is a ground being relied on and that he be given the opportunity to remedy any deficits, and ultimately to defend himself in any procedure which might lead to disciplinary sanction or termination of his employment.

The respondent sought to suggest that the complainant’s version of the August 18th meeting could not be believed because he (the complainant) had made claims about a lack of prior engagement on the issues and this was rebutted by the respondent’s evidence.

In fact, this is of no assistance to his case for several reasons.

In the first place it was not rebutted by the respondent evidence.

Secondly, it does nothing to shift the burden of proof falling on the respondent to demonstrate that the dismissal was fair.

Thirdly, even if the complainant’s version of events at the meeting of August 18th were a complete fabrication (which I do not say it was) this will not displace the burden which falls under the Act on the respondent to prove that the dismissal was fair in the course of a hearing at Adjudication.

In fact, there was no actual evidence that the sequence of meetings referred to related to the complainant’s performance at all, or at least not in the specific sense that would lead to possible sanctions or dismissal. The complainant says that these were no more than routine business meetings.

The respondent’s position was distinguished by a total absence of evidence of any sort to support his case that there were substantial grounds to terminate the employment, beyond a record in his diary of the various meetings he says took place. There was no record of what was discussed at these meetings or their outcome and there was no evidence of the alleged oral warning.

Given what was being alleged about the serious deficits in the complainant’s performance it must be regarded as surprising that at no stage did the respondent consider it prudent to make a record of some sort and share it with the complainant.

Likewise, there was no follow up in respect of the final meeting of August 18th which is extraordinary.

On that latter point a simple letter to the complainant confirming the outcome of the meeting (as described by him) might have gone some way to meet the burden of proof. It would have given the complainant the opportunity to contest it at the time and have any disputed issues resolved.

An adjudicator faced with a stark conflict of evidence in respect of a key episode in a case would normally face a dilemma in respect of the credibility of the witnesses.

Where the law defines the burden of proof to be met, as in cases of unfair dismissals, and the respondent fails to do so then that dilemma is largely resolved. The respondent has not even come close to meeting that burden of proof in this case and the dismissal is therefore unfair.

Indeed he has displayed a lack of awareness of his obligations as an employer in a matter such as this to a degree which is surprising.

I have given some consideration to the issue of mitigation and of the contribution of the complainant’s performance to his dismissal. The respondent’s evidence that there were some deficits in the complainant’s performance was credible.

But any such deficits should have been addressed by him at the level of the workplace initially. As noted above there was no evidence at all that he did so.

I conclude that where there has been no visible fair process or minimum compliance with the requirements of fair procedure of the burden of proof required by the Unfair Dismissals Act that the complainant’s performance is not a relevant mitigating factor.

His losses were estimated by him to be €12,500. This was disputed by the respondent who put them at €10,500 based on his understanding that the complainant undertook private practise since losing his position; a suggestion disputed by the complainant. Evidence was given of the complainant’s attempts to mitigate his loss.

I uphold complaint CA-00007681-001 and award the complainant €11,250.00.

Unfair Dismissal, failure to follow fair procedure, lack of substantial grounds.