ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002991

Complaint for Resolution:

Date of Adjudication Hearing: 25th October 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 80 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts 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.

Background:                                                                                                                                             

The Complainant was employed by the Respondent from 1^st May 2013 to 29^th October 2015.   The Complainant said his nett weekly rate of pay was €400.00c and the Respondent said it was €330.00c.   The Complainant was submitting he was unfairly dismissed and the Respondent was denying the complaint.

Summary of Respondent’s Position:

The Respondent said they are a family run business dealing in the tyre trade.

The Respondent said the Complainant worked in one of the two branches of the Company.   The Respondent said the Complainant was provided with a written contract of employment on 11^th September 2014, which was signed by him and on behalf of the Respondent and they said a copy of the Employee Handbook was provided to him (the Complainant denied that he had been provided with a copy of the Employee Handbook and said he had never seen it before the Hearing).

The Respondent said that due to a downturn in business in the months of September and October 2015 they had to reduce the Complainant’s hours of work.    The Company Director spoke to the Complainant on behalf of the Respondent and explained to him that they believed that it would be on a temporary basis and they hoped business would pick up in the run up to Christmas.    The Respondent gave the Complainant Form RP9.  

On 23^rd October 2015, at approximately 5.30pm the Director received a telephone call from the Manager informing that the Complainant had left work early and had taken €70.00c from the days takings without any authorisation.   The Director rang the Complainant straight away; there was no answer and she left him a voice message asking him to contact her as soon as possible as she wanted to know why he had taken €70.00c and she requested that this money be returned immediately.   The Director also wanted to know why this money was taken without any authority from either herself, the Managing Director or any other person in charge.   The Director also sent two text messages to the Complainant asking him to contact her in relation to the removal of the money.

On the morning of Tuesday, 27^th October 2015, the Manager and another named employee arrived to open the Depot and the Complainant was present.   The Manager told the Complainant that there was no work for him and he was told that he should contact either the Managing Director or the other Director to discuss what had occurred on 23^rd October 2015.   The Manager asked the Complainant did he remove €70.00c from the takings and he confirmed that he did.  The Complainant telephoned the Director and a discussion took place.   The Respondent believes the Complainant was aggressive to the Director.    The Director asked the Complainant had he taken the money and she said his rely was “and”.   The Director told the Complainant that he was being suspended from work pending an investigation into the removal of money by him from their premises on 23^rd October 2015.   The Director told the Complainant that she would meet with him to discuss the matter to ascertain if he could give any genuine reason why he had removed the money.   It was agreed they would meet at 11.00am in the Depot he worked in.   The Director viewed the CCTV footage and saw the Complainant stop working at 5.10pm, when he was due to work until 5.30pm.   He left the premises at 5.22pm went to a car and got into it.   He then got out of the car and he returned to the premises at 5.26pm and went to where the takings were kept and rummaged in the corner and he then left.

At 11.00am on 27^th October 2013, the Director received a telephone call from the Complainant that he could not attend the Meeting.   The Director told the Complainant that she had travelled from a named location to the Depot to meet with him with view to clarifying the position face-to-face and to enquire why he had removed €70.00c.

The Respondent said that this was done to facilitate the Complainant in providing the Respondent with a reason as to why he had removed money from the takings.   The Respondent said that as the Complainant did not meet with the Director on that date and did not furnish a genuine explanation as to why he removed the money, they were left with the situation where they had to make a decision in relation to what they regarded as a serious breach of trust and gross misconduct by the Complainant.   The Complainant had been invited to a Meeting with a view to providing his views and offering a full and detailed explanation as to why he removed money from the day’s takings, as this did not occur the Respondent was left with no option but to terminate the Complainant’s employment for what they felt was a breach of trust.

The Respondent said that in accordance with the provisions of the contract of employment the Complainant was given an opportunity to state his case, but he decided not to do so and in the circumstances the Complainant was sent a letter dated 29^th October 2015 informing him that he was dismissed and he was also informed that he had the right to make a case and give reasons to mitigate the actions he was involved in.    

The Director then received a letter from a named SIPTU Official seeking a meeting regarding the Complainant.   It was agreed the Meeting would take place at the Tyre Depot in the second location.     A discussion took place between the SIPTU Official and the Director in relation to the matter, in the course of which allegations were made of failure to provide pay statements in accordance with law.   The Director stated that pay statements were/are always given to employees and that on the date in question that is the subject of this complaint, the Complainant had been given his wages in the sum of €330.00c by the named Manager together with a pay statement.   It was pointed out to SIPTU that the Respondent had had a recent Revenue Audit and that everything was in order.

The Respondent said they are of the view that due to the actions of the Complainant they were left with no option but to dismiss him from their employment.   The Respondent said that in accordance with natural justice and in accordance with the terms and conditions of his contract of employment he was requested to attend a Meeting on 29^th October 2015, with a view to putting forward his side of the story to the Respondent.   It was open to him at that point in time to provide full and detailed reasons as to why he may have taken the money from the takings.   If he had attended at that Meeting and given a genuine reason as to why he had taken the money, then the Respondent may have looked favourably on the Complainant.   However in the absence of the Complainant attending the Meeting the Respondent was left in the position where they had little option but to terminate the employment of the Complainant due to the breach of trust that occurred in relation to this matter.

The Respondent said that in the circumstances they do not believe that the Complainant was unfairly dismissed by them and he was given ample opportunity to put his side of the story in the matter.

The Respondent said it should be noted that they are a small family firm and trust is absolutely paramount to the proper running of the Company.

The Respondent provided P60 documents in relation to the Complainant.

Witness No. 1.                                                                                                                                               

A Witness gave evidence on behalf of the Respondent.   The Witness said he was employed by the Respondent as a Tyre Fitter and as a Manager.   He confirmed that he did not normally work at the location where the Complainant worked and he was not the Complainant’s Line Manager.   He said that on the 23^rd October 2015, the Complainant’s Line Manager was on leave and he was working covering for him along with the Complaint.

The Witness said he saw the Complainant stop work and leave the premises early, shortly after 5.00pm.   He said the Complainant returned to the premises after a short period.   He said the Complainant went to the second bay and walked up to where the cash was kept and that the Complainant shortly left the premises for a second time and on this occasion did not return.

The Witness said that when he went to lock up and checked on the cash and he saw that there was €70.00c missing.   (They keep a running total during the day).   He said that he then looked at the CCTV and he acknowledged that he could not see the money been taken on the CCTV.

The Complainant said he then rang the Director and told her of the missing money.    

In response to questions the Witness acknowledged that he had been in and out of the premises during the day and he accepted that anything could have happened (including to the cash) while he was out of the premises.

The Witness confirmed that he had handed the Complainant his wages that morning in an envelope.

Summary of Complainant’s Case:

SIPTU said that the Complainant commenced employment with the Respondent on an internship in 2012 and he was retained by the Respondent at the end of this internship on a permanent contract of employment from 11^th September 2014.   SIPTU said the Complainant was based at a Company premises at a named location.   SIPTU said the Complainant worked 39 hours per 5 day week and at the time of his dismissal was paid €400.00c nett per week in cash.   SIPTU said that this amount was based on instruction from the (named) Director in January 2015, when she notified the Complainant in a telephone call that his wages would increase from €350.00c to €400.00c.

SIPTU said that the actual payment of wages was never handled by either the Managing Director or the other Director, but instead the practice was that the two workers at that particular premises organised their own wages from the week’s takings.   This was recorded on the envelope containing cash taken in from customers over the previous days.

SIPTU said the Complainant had no previous warnings or disciplinary sanction on his record.

On Wednesday 21^st October 2015, following his return from a short absence due to illness, the Director arrived at the depot he worked in and told him and his named co-worker that she had spoken with the Accountant and it was not good news.   The Director told the Complainant that he was being placed on a two day week, as things were quiet.   The Complainant was led to believe that all employees were having their working hours cut.   The Director told the Complainant’s colleague that the Managing Director would speak with him later that day.

When the Complainant arrived at work the next day, Thursday 22nd October 2015, he discovered that another named colleague had not been subject to a reduction in working hours, nor had the Manager of the premises.   The Complainant sought clarification from the Managing Director in respect of the reduction in working hours and in particular he asked who else had been effected by this cut in working hours, but the Managing Director ignored this question.   The Complainant told the Director that she could not just cut his working hours without any justification and he says she told him they “could do whatever they wanted”.   She then added that business was quiet recently.   The Complainant said that however he had not noticed any drop in business and he had been employed for 3 years at that stage.  

The Director had no further discussions with the Complainant that day, but at about 4.30pm that evening another named employee handed him two envelopes, which he said the Director had asked him to give to the Complainant.   SIPTU said that up to that point in his employment the Complainant had never received a pay statement, however one of the envelopes contained pay statements covering the previous two months.   These showed a weekly wage of €330.00c per week instead of the €400.00c that had been paid to the Complainant since January 2015, and this was his normal weekly pay.

SIPTU said the second envelopes, contained €330 in cash.   The Complainant had not been told by the Director that this was now his wages, and it was unusual for wages to be paid in this way, and as it stood this was €70 less than his normal weekly wages over the previous 10 months.

SIPTU said that normal practice over the period of the Complainant’s employment was that either he or his named colleague would record all monies taken in each day and leave this in an envelope, hidden as best possible on the premises.   There was no cash box/safe provided for the safekeeping of this money and there was no policy or protocol for the receipt of, or safekeeping of monies received.   There was no cash register to record takings, and the majority if not all transactions were in cash.   At the end of each week both workers deducted their wages (an amount already fixed by the Respondent) from these monies and recorded this on the outside of the envelope from which monies were deducted.   SIPTU said that no issue was ever raised about this and as far as the Complainant was concerned this practice was Company approved/agreed.   SIPTU submitted a copy of an envelope with details on it which they said demonstrated this.

SIPTU said that on that Friday evening, the Complainant did as normal, in that he deducted his wages from the week’s takings but took into account the €330.00c given to him and he only added the shortfall of €70.00c: he recorded this on the bottom of the envelope and he also told his work colleague that he had done this as he was leaving that evening.

SIPTU said the following Monday was a Public Holiday and therefore it was Tuesday 27^th October 2015 before the Complainant was due back at work.   He turned up at 8.25am and he opened up the premises.   Soon after another two workers arrived. The named employee told the Complainant that the Managing Director had said there was no work for the Complainant.   The Complainant asked the third named employee if his working hours had been cut, and he was told that they were not and that he had been given extra hours.

The Complainant went home and he telephoned the Managing Director and texted the Director to clarify his position.   The Complainant says the Managing Director told him he was suspended.   He asked the Managing Director the reason for his suspension and he says the Managing Director hung up the telephone.   The Complainant telephoned back and the telephone was answered by the Director, who told him he should go to the other Company premises to discuss the situation.   However the Complainant’s job was at the other premises and he believed the Director should come to his place of work to discuss this with him.   This was agreed.   However on further consideration the Complainant concluded that he should have representation at the Meeting and he tried to telephone the Director several times but she failed to answer until about 10.50am. The Complainant said that when he explained his position to her the Director was quite angry stating she had travelled for nothing and she then hung up the telephone.

The Complainant contacted his named SIPTU Official.

SIPTU said the Complainant received a letter from the Respondent dated 27^th October 2015, but post marked 28^th October 2015, stating that he was suspended with pay.   In this letter he was informed of his right to “make his case to the employer and mitigate against his possible dismissal”.   SIPTU said that however a further letter was received by him from the Respondent dated 29^th October 2015 but post marked 30^th October 2015, in which he was informed that the Investigation had taken place and that it was the decision of the Managing Director to dismiss him.   SIPTU said that the Complainant was not afforded any opportunity to defend himself or indeed make a case as previously informed or advised by the Respondent.   SIPTU said that the letter did mention an appeal process that was said to be outlined in his contract of employment.

SIPTU said the Complainant was issued by the Respondent with his P45, Cessation of Employment Certificate, on 11^th November 2015.

SIPTU said that a meeting took place with the Respondent after this but the matter was not resolved and at that point the Complainant had already been dismissed.

SIPTU said that the Complainant was placed on short time working just around the time he was dismissed and he was given to believe that the other employees were also to suffer a reduction in their working hours, but this was not the case.   The Complainant said that in fact an employee with less service than him not alone had no reduction in working hours imposed on him, but rather had his hours of work increased.   SIPTU said that the Complainant raised this with the Managing Director and it seems clear that this resulted in his dismissal.

SIPTU said the actions of the Complainant on the evening of Friday 23^rd October 2015 were no different than on any previous Friday evening, when he and his work colleagues would have counted and recorded the cash take in and from that taken/deducted their wages.

SIPTU said the only difference on this occasion was that the Director, through a work colleague, gave the Complainant two envelopes containing a few weeks pay statements and €330.00c in cash.   On taking/deducting his wages from the cash takings that evening the Complainant took into account this €330.00c and he only deducted €70.00c, which then made up his normal weekly wages.

SIPTU said that the actions of the Respondent could well be construed as a mechanism to entrap the Complainant, thereby providing the opportunity for the Respondent to dismiss him.

SIPTU said that the Complainant was not afforded an opportunity to defend himself before the Respondent made the decision to dismiss him.   He was suspended on Thursday 27^th October 2015 and told that he would be provided with an opportunity to make a case to mitigate against his possible dismissal.   He was notified of this in a letter dated 27^th October 2015, which was posted on 28^th October as per the postmark.   SIPTU said the Respondent then wrote the letter of dismissal on 29^th October 2015, just one day later.   SIPTU said that this left no time for the Complainant to organise representation or make arrangements to put forward a defence in advance of the decision to dismiss him.   SIPTU said this also shows that the Respondent made their decision and were going to waste no time in implementing it and they said that that contention is supported by virtue of the calculation and inclusion of holiday pay owed.   SIPTU said that there could have been no consideration of a lesser sanction or a means to address the issue any way other than dismissal and said that this is contrary to normal industrial relations procedures and the laws of natural justice.

Based on the foregoing SIPTU and the Complainant sought that the complaint be upheld.

The Complainant gave direct evidence.   He said they were always paid in cash.   He said that the takings, including cash were kept in an envelope in the Depot premises he worked in.   He said that when any money was taken in it was recorded/written on the outside of the envelope.   He also said that he took his wages in cash from this envelope, that he recorded/wrote it on the outside of the envelope, he said this was always the way his wages were paid and he submitted a photocopy of one such envelope from February 2015, which he said clearly demonstrated this practice.  

The Complainant said that on 23^rd October 2015, he was handed two envelopes by a named colleague, who told him that he was asked by the Director to give them to the Complainant.   The Complainant said that he opened the two envelopes in front of his colleague and he saw that one contained pay statements for two months; he said that he had never received pay statements previously.   He said the second envelope contained €330.00c in cash, which he understood was his wages.   He said that when he saw the €330.00c he said to his colleague “she is after cutting my wages.”

The Complainant said that his finishing time was 5.30pm he wanted to finish work on time that evening so he removed his working gear and went to his car.   He came back and went to where the envelope with the money was kept and removed the €70.00c balance of his wages due to him and he said that he wrote this on the outside of the envelope.   He said that he went straight to his named colleague and told him that he had taken the €70.00c balance of his wages due to him from the cash in the envelope and he then left and went home.  

In response to questions that Complainant said that he was fully aware that there was CCTV in operation in the Depot.   He said that he did what he did quite openly and made no attempt to conceal it and he believed that he was only doing what he had always done in taking his wages from the cash on the premises and in this case it was the balance due between the €330 paid and the €400 due as his normal wages.  

The Complainant said that after his discussion with his colleague, he left for home as it was finishing time.

He acknowledged that he received a voice message and text message from the Director on his way home and he said that he did not respond as he did not want to deal with any work issue outside of working time on a bank/public holiday weekend.

The Complainant said that on the following Tuesday he was told by a named colleague that the Managing Director had said there was no work for him (the Complainant) he said that the named colleague was accompanied by another employee who did not normally work in that Depot.

The Complainant said that he then rang the Managing Director and the Managing Director told him that he was suspended.   The Complainant asked was this to do with the €70 and the Managing Director said “Yes”.   The Complainant said the Managing Director told him that if he wanted to he could come up to the other Depot to discuss or deal with the matter.   The Complainant said that he asked the Managing Director could he come to the Depot where the Complainant worked and he said the Managing Director hung up the telephone without answering.

The Complainant said he rang back again and the telephone was answered by the Director and he spoke with her about the situation, she told him that he should go to the other Depot to discuss the situation.   He said that as his place of work was the other Depot, he believed she should come there to discuss the matter and he asked her to do so.   He said she agreed to do this and arranged to meet him there at 11.00am.   He said on reflection he decided that he would need representation and/or or a Witness and advice for the meeting, so he rang the Director shortly after 10.00am a number of times but got no response until about 10.50am, when she answered and he explained his position to her.   The Complainant said the Director was very angry and said she had travelled over for nothing.  

In response to questions the Complainant said that no further meeting was arranged.

The Complainant confirmed that he received the letter telling him that he was suspended post marked the following day 28^th October 2015, and he received the dismissal letter post marked two days later 30^th October 2015.

The Complainant gave evidence of his efforts to secure alternative employment and mitigate his losses.

The Complainant and SIPTU sought a favourable decision.

Findings and Decision:

Section 80 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 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 have carefully considered the evidence and the submissions made and I have concluded as follows.

In relation to the dispute as to what the Complainant’s normal weekly rate of pay, the Respondent states it was €330.00c nett and the Complainant states that it was €400.00c nett.   I note that the P60 provided by the Respondent does not support their contention that the Complainant was paid €330.00c weekly.   On the other hand the Complainant submitted a photocopy of the envelope in which cash was kept in the Depot (the veracity of which was not challenged by the Respondent) which a deduction of €400.00c for wages was clearly recorded, which supports the Complainant’s position.   I have decided, on the balance of probabilities, that the Complainant’s normal weekly rate of pay was €400.00c nett.

On 21^st October 2015, the Complainant was informed by the Respondent that he was being placed on short time working on a 2 day week as things were quiet, that they believed it would be temporary and that they hoped business would improve before Christmas.    The Complainant was the only employee being placed on a 2 day week.     The Complainant submits that there was no evidence of a reduction or of things being slow or quiet and it is certainly the case that no evidence of things being slow or quiet was presented to me at the Hearing or at the time to the Complainant.   In addition was it the case that things were genuinely slow or quiet then it is difficult to understand why only the Complainant would be placed on short time working.   Surely if there were a genuine need for short time working it would be fairer, more reasonable and more equitable to spread the short time working among a group of employees rather than by piling it all on one employee, such as by rotating the short time working among employees, or by placing 3 employees on a 4 day or 2 employees on a 3 day week or any of the many variations of same.  

In addition when informing the Complainant that he was being placed on short time working the Respondent provided him Form RP9.   Form RP9 is used by employees to claim redundancy payments from their employer where they have been on lay-off or short time working for 4 consecutive weeks or a broken series of 6 weeks within a 13 week period and where the employer is not in a position to provide not less than 13 weeks unbroken employment within 4 weeks of the Complainant’s application and an employee is not entitled to minimum notice or minimum notice payments when such an application is successful.   It is unusual for an employer to provide such a form to an employee, in effect inviting them to apply for redundancy.   It is even more unusual in circumstances where the employer is stating the short time working was temporary; as it is clear that in accordance with the provisions of the Redundancy Payments Acts redundancy can only apply where the short time or layoff is not temporary.     The Respondent’s approach in this respect tends to support the view that the Respondent was inviting the Complainant to terminate his employment with them and in the cheapest way for them.  

I find the evidence of the Witness called by the Respondent to be incoherent, contradictory and lacking in credibility and not in accordance with established facts.   This Witness said in relation to 23^rd October 2015, that he saw the Complainant stop work and leave the premises shortly after 5.00pm.   He then saw the Complainant return to the premises after a short period, that the Complainant walked up to the part of the Depot where the cash was kept in an envelope and that he shortly left the premises and did not return.   In response to questions he said the Complainant was not in his line of vision when he returned and went to where the cash was kept and that he did not see him take (the) money.   He also said that Complainant did not speak to him about the matter.     The Witness said that when he was going to lock up the premises he checked on the cash and saw that there was €70.00c missing.   He said that he then viewed the CCTV and he acknowledged that he could not see the money being taken on the CCTV.   He also said in response to questions that he had been in and out of the Depot during the day and he accepted that anything could have happened to the cash while he was absent during the day.   Nevertheless he then - and this is confirmed by the Director who was present at the hearing   - rang the Director and told her that the money was taken by the Complainant, despite the facts as outlined.   Based on his own evidence, the Witness had no valid reason to conclude that the Complainant had taken the money, and I note that all that followed flowed from that telephone call from the Witness.   I have concluded that the evidence of this Witness is not to be relied upon and it is disregarded by me.

In relation to the procedures observed by the Respondent there was a total lack of fair procedures in accordance with natural justice, established law and S.I. 146 of 2000, The Code of Practice on Grievance and Disciplinary Procedure.

It is to be expected in a case where the possibility of dismissal existed that in accordance with fair procedure the following at a minimum would apply:

1. That the Complainant would be informed in specific detail of the allegations against him and that if proven the potential for dismissal existed, that an investigation would take place and he would then be suspended with pay for a reasonable period (usually 3 days to 1 weeks depending on the complexity of the allegations) to allow him to prepare a defence, take advice and arrange representation if desired, which he should be advised to do   - and this should all be confirmed in writing to the Complainant along with the names and details of who would be conducting the Investigation and he should be provided with any witness statements.

    

2. When the Investigation was concluded, with the Complainant being afforded the opportunity to present his case, be represented and call any witnesses in his defence then he should be informed in writing of the outcome of the Investigation and if the allegations were deemed proven he should then have been invited in writing to a Disciplinary Hearing and again informed of the fact that this was potentially a dismissible offence and advised to take advice and of his right to representation.   This Disciplinary Hearing should be chaired by a more senior person not involved in the Investigation.

3. If the decision of the Disciplinary Hearing was to dismiss then the Complainant should be informed of his right to appeal against that decision and the procedure for same and the appeal should be heard by someone senior to the person who made the original dismissal decision and who was not involved in the Investigation and the Disciplinary Process.

None of these basic fair procedures were observed by the Respondent in the instant case.

I note that on the morning of 27th October 2016, the Complainant was informed by a work colleague that the Managing Director had said there was no work for him.   The Complainant had to ring the Respondent directly to ascertain what the position was, this is wrong.   He rang and spoke to the Managing Director who told him he was suspended, but not why, or for how long, or whether the suspension was paid or unpaid.   He asked the Managing Director was this to do with the €70 and the Managing Director said yes and then told the Complainant that if he (the Complainant) wanted to he could go up to the other Depot to discuss or deal with the matter, the Complainant asked the Managing Director could he come to the Depot where the Complainant worked and the Managing Director hung up the telephone.

The Complainant rang back and spoke to the other Director (who is the wife of the Managing Director) and it was arranged that she would come to the Depot where the Complainant worked and meet with him.   The Complainant, on reflection, decided that in the circumstances he would need independent professional representation and advice and he contacted the Director and informed her of this.   The Director was angry at having travelled over and after a very short discussion hung up the telephone.   No (further) effort was made to arrange a meeting with the Complainant.

A letter dated the same day, but post marked the following day was received by the Complainant which stated:

“We are writing to you in relation to breaches of company procedures and in particular your actions on Friday 23^rd October 2015, regarding the removal of money by you from our premises without authority.

We are treating this incident as gross misconduct and are suspending you with pay from 27^th October 2015.

You have the right to make a case and give reasons to mitigate against your possible dismissal”

We will be in contact with you in due course”

This letter is signed by both the Director and the Managing Director.

As can be seen from the above the references are to breaches of company procedures and actions and not ‘alleged’ actions or breaches.   It further refers to gross misconduct and not possible or potential misconduct.   It is clear from this letter that the Managing Director and the other Director have already decided that the Complainant was guilty before any investigation and the only matter to be considered was mitigation against possible dismissal.

Plainly the matter has been prejudged by both of them. This fact alone would render the dismissal unfair.

Two days later the Managing Director and the Director wrote a further letter dismissing the Complainant in which they stated inter alia.

“In relation to the previous correspondence dated 27^th October 2015 and following an investigation of the matter in question, it is now the decision of the Managing Director to dismiss you from your position as tyre fitter with immediate effect.

You may appeal this decision in accordance with the terms and conditions as set out in your contract of employment.”

Again this letter was signed by the Managing Director and the other Director.

Plainly contrary to the above there was no investigation.   There could not be an investigation without any involvement with the Complainant and no serious effort was made by the Respondent to arrange a meeting with the Complainant, there is no letter inviting the Complainant to attend an Investigation Hearing, nor any invitation to a Disciplinary Hearing.   I was presented with no evidence of any proper investigation.  This was a gross breach of fair procedures that renders the dismissal unfair

I note the Complainant is informed that he may appeal the dismissal decision in accordance with the terms and conditions set out in his contract of employment.   Under the DISMISSAL PROCEDURE Section of the Contract it states at 3: “You may appeal to the Managing Director of a decision to dismiss you”.   So the Complainant was being invited to appeal the decision to dismiss him to the person, who along with wife and fellow director, dismissed him!!   This is ludicrous in the extreme and offends against every concept of fair procedure and natural justice.   It is also noteworthy that the two directors jointly or separately apparently made the allegations, conducted any investigation that took place (of which I can see no evidence), prosecuted the case and made judgement on it.   They were making the allegations, conducting the investigation, prosecuting the case, judge, jury and executioners.   This too offends against every concept of fair procedure and natural justice and again would render the dismissal as unfair.

It is clear and I find that fair procedures that respected the Complainant’s rights, and as summarised in the forgoing were not respected by the Respondent in this matter and that fact renders the dismissal as unfair.

For all of the foregoing reasons I find and declare that the Complainant was unfairly dismissed by the Respondent and accordingly I declare that the Complainant is well founded and it is upheld.

In considering the appropriate redress I have taken into account all matters, including the views of the parties as expressed at the Hearing and I have concluded that there is in the instant case an absence of the minimum level of trust necessary to sustain an employer/employee relationship and that there is no prospect of such a relationship being restored and in such circumstances I have concluded that the only appropriate redress is compensation in the instant case.

The Complainant was unfairly dismissed by the Respondent and in accordance with the provisions of Section 7 of the Act I require the Respondent to pay the Complainant compensation in the sum of €20,000.00cc within 6 weeks of the date of this decision.

Sean Reilly, Adjudication Officer

Dated:   9^th February 2017