Complainant

Respondent

Anonymised Parties

Phone Technician

A Mobile Phone Repair Shop

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00009185-001

19/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009185-002

19/01/2017

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

CA-00009185-003

19/01/2017

The complainant commenced work on 4^th October 2015 as a mobile phone technician.   He handed in his notice around 1^st December 2016 as he had secured another job elsewhere. His employment was terminated by the respondent on 2^nd December 2016 owing to alleged poor performance and conduct.

The complainant alleges that he is owed money in relation to outstanding pay. He acknowledged that he owed the respondent money in relation to the purchase of a mobile phone and that he had received payment for some of the outstanding monies to the value of €1,616.71.

The respondent confirmed that they had paid €1,616.71 by direct debit on 7^th March 2016 and that the complainant also owed them money for the purchase of a mobile phone to the value of approximately €250.

The complainant and respondent had been involved in mediation whereby a draft agreement suggested the complainant was owed €2,512.00. The respondent had paid €1,616.71 and advised that they were owed €250 in relation to the purchase of a mobile phone which the complainant did not dispute.  

Nowhere is it detailed in the legislation that if an employer feels aggrieved with their employee that they can deduct payment from them nor was there any contract of employment issued that might have provided for same.   Based on all the evidence I find the complainant’s claim is well founded and I order the Respondent to pay to the Complainant wages to the sum of €646.00.

I find that, the complainant’s claim is well founded and I order the Respondent to pay to the Complainant wages to the sum of €646.00.

The complainant alleges that he never received terms and conditions of employment and that he looked for them on more than one occasion.

The respondent stated that the complainant never looked for terms and conditions of employment.

With regard to the Complainant’s claim that he never received a contract of employment I must declare that complaint is well founded and succeeds and award the complainant €500.00.

I find that the complaint is well founded and succeeds and award the complainant €500.00.

The respondent advised that the complainant handed in his notice on 1^st December. On 2^nd December his employment was terminated through a telephone conversation owing to allegations of changes he had made to rosters, being late on a number of occasions and being unfit for work owing to being hungover.

Evidence of Mr A - Technician

Evidence from a technician Mr A advised that when the complainant handed in his notice he appeared hung over and talked about how he had been out drinking and had been late going to bed. It was the opinion of Mr A that the complainant was hungover and unfit for work. Later the complainant asked would Mr A swap shifts with another employee as the complainant and this employee were out drinking. Mr A agreed as he assumed this arrangement would be confirmed with the Director of the company Mr B.

Evidence of Mr C – Senior Manager

Mr C outlined a number of occasions when the complainant was late for work. He advised that the complainant appeared intoxicated on a number of occasions. On 2^nd December Mr A came to him and advised that the complainant had rearranged the shifts but that the employee’s shift that he had rearranged with had failed to turn up for work.

Evidence of Mr B – Director

Mr B confirmed that he was made aware that the complainant had made changes to the roster without his permission and that he had also appeared for work hungover. Following a phone call to the complainant he advised him to collect his tools and confirmed that he contract was terminated.

The complainant advised that he had resigned his position around 1^st December with the intention of finishing up on 31^st December 2016. On 2^nd December he received a phone call from the Director of the company whom he claimed shouted at him over changes to the roster the complainant was alleged to have made. He was advised over the phone that there were serious repercussions and that he should come in and pick up his things from work. He asked if he was being let go and was advised yes.   He expressed his disappointment and annoyance at the way that he had been treated and advised that he did not know that it was a problem to change the roster the way in which he did.  

Pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, 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 are substantial grounds justifying the dismissal. The burden of proof is firmly on the Respondent.

I must consider my function in the case of alleged misconduct which has been well established and is set out in Looney & Co. Ltd. v. Looney (UD 843/1984):

“It is not for (me) to seek to establish the guilt or innocence of the claimant, nor is it for (me) to indicate or consider whether (I), in the employer’s position, would have acted as (the respondent) did in his investigation, or concluded as he did or decided as he did, as to do so would substitute (my) mind and decision for that of the employer. (My) responsibility is to consider against the facts what a reasonable employer in (the respondent’s) position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

Thus, I am not here to seek to establish nor does it establish that the employee is guilty or innocent of the alleged wrongdoing. And further, I must not substitute my decision for that of the employer but must ask if a reasonable employer in the similar circumstances to those facing the respondent would have dismissed the employee. The reasonable employer test is satisfied if

• The employer believed that the employee misconducted himself as alleged? If so,
• Did the employer have “reasonable grounds to sustain the belief? If so,
• Was the penalty of dismissal proportionate to the alleged misconduct? (Noritake (Irl.) Ltd v Kenna (UD 88/1983).

The respondent was advised that the complainant had made changes to the roster which he was not entitled to. The respondent was also informed that the complainant was late on occasion and appeared to be hung over on occasion. The complainant challenges the fairness of the dismissal as he was not given an opportunity to explain himself and was dismissed on the phone without any procedure being followed. Therefore, with regard to whether the employer had a genuine belief based on reasonable grounds that the employee was guilty of the alleged misconduct, I find that:

• The respondent heard that the complainant was guilty of misconduct and dismissed him.
• The laws of natural justice were never followed including the complainant was not afforded the right of representation, not afforded the chance to explain himself, not afforded the opportunity to reply to the allegations, not presented with the full allegations.

The requirement for fair procedures and a fair hearing has been reinforced in Gallagher v Revenue Commissioners [1995] E.L.R. 108 (No.2) [1995] which details that the complainant was entitled to fair procedures and a fair hearing and C. v. The Mid-Western Health Board [2000] ELR 38 highlights that the complainant had the right to know the full case against him. Ultimately, where “the principles of natural justice were not complied with” the decision to dismiss has been deemed unfair as determined in Vitalie Vet V Kilsaran Concrete, Kilsaran International Ltd [2016] 27 E.L.R. 237.

While I can understand that the respondent was feeling frustrated that there were allegations against the complainant and as he had already resigned he did not want him to stay on, it does not remove the obligation of the employer to afford the complainant due process. It is necessary in this case to apply “the band of reasonable responses” test.

Owing to the failure of the respondent to afford the complainant his rights to due the principles of natural justice, there were absolutely no reasonable grounds to sustain their belief.  Having considered the written and oral submissions of the parties, and applying the reasonable test, I find that the dismissal was unfair.

In assessing redress, and taking into account that the complainant had secured employment before his dismissal, I consider compensation the appropriate form of redress and I award €1,500 for the unfair dismissal.

I find that the complainant was unfairly dismissed and the complaint succeeds. I order the Respondent to pay the Complainant the sum of €1,500 for the unfair dismissal.

Unfair dismissal, terms and conditions of employment, payment of wages,