ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003010

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 28/11/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

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

Complainant’s Submission and Presentation:

The Complainant brought a preliminary application to extend the time to bring his claim based on reasonable cause.

The Complainant was aware that he had to furnish evidence to explain the delay.

He provided me with a detailed medical report from his GP outlining the background to his employment relationship. It outlined the details as to his health, his personal background, his blood pressure issues, and the elevation of same due to the significant stress he was experiencing.

The medical report was a dated 26^th April 2016 and covered the period from December 2013. As regards the relevant six-month period between the 20^th of June 2015 and the 20^th of December 2015 the Complainant relied on the medical report as evidence that he was distressed and depressed, his mood was low and he had commenced on a different hypnotic.

The Complainant gave evidence that following his dismissal he was not capable of ordinary everyday thinking. His fiancée was living in Belfast at the time and had found it difficult to contact him. He gave evidence that he shut himself away and the only time he left his bedroom was to go to his medical appointments. He had distanced himself from his children and his behaviour at that time was very negative.

He confirmed that he would have been normally very aware of employment law and time limits, but at that time nothing mattered to him. He felt worthless and couldn’t believe the way his employment had been terminated by the Respondent, a company he had built up. He had invested fourteen years of his life in the Respondent.

He had been in contact with his solicitors in 2014 and had access to them, but he was not capable of the required action at the time. He felt extremely worthless and it was only following support from a counsellor and his GP that he built the confidence in himself to contact his solicitor in April 2016.

Based on the evidence provided to me, the Complainant has shown reasonable cause for not lodging his claim within the required six months and I have extended the time limit by a further six months. The Complainant showed a causal link between his medical condition and the delay in lodging the claim. I am satisfied that had those circumstances not been present in the time between 20^th June 2015 and 20^th December 2015, he would have initiated his claim in time.

The Complainant made the complaint on the 28^th of April 2016. The Respondent went into liquidation with an effective date on the 21^st of June 2016.

There was no attendance for the Respondent at the hearing.

The Complainant worked for the Respondent which was a community childcare centre. He was one of the founder members. When the centre opened, it had seven children requiring childcare. When the centre went into liquidation it had 108 children on its roll book. The centre was run in a disadvantaged area of a town. The Complainant arranged for the centre to apply for grants from Rapid and POBAL and to secure the facilities of two houses in the housing estate from where the centre was run. At the time of the termination of the complainant’s employment twenty-five people were employed in the centre in various roles.

Problems began to surface in the running of the centre in September/October 2013. The Chairperson of the Respondent’s Board of Directors was accused of sexual harassment by a number of staff members. A member of staff was dismissed. She took an unfair dismissal claim and a personal injury claim alleging bullying and harassment.   The Complainant gave evidence that the Chairman of the board asked the Complainant to shred evidence contained in files against him. The Complainant reported the matter to the Respondent’s solicitor. The Chairperson repeatedly asked the Complainant to destroy evidence. The Complainant refused.

The Complainant gave evidence that the Chairperson started taking steps to interfere with the Complainant’s job. He approached the staff at the centre looking for “dirt” on him. The Complainant felt that the chairperson wanted to “bring him down”. The chairperson was alleged to have stated that he hoped to close the centre down. It is understood that he believed if the centre closed, the cases being brought would “go away”.

In October 2014 at a meeting in the Respondent’s centre, the Complainant broke down in front of the other members that were at the meeting.

The Complainant’s evidence was that he tried his best, but he was unable do his job. His role was being undermined by other parties who were interfering with the statutory books required by the funder such as roll books, financial statements, personnel files, Garda vetting forms, references on files etc.

The Complainant went on sick leave on the 10^th of December 2014. His medical certificates to the Respondent stated that he was absent due to depression and stress. This was clarified as work related stress.

The Respondent arranged for two appointments for the Complainant with Medmark. The Complainant did not attend. The Complainant’s sick certificates covered a period to the 16^th of June 2015.

On 20^th of May 2015 the Complainant received a five-page letter from the new Chairperson of the Respondent. The letter acknowledged that the Complainant was on sick leave.

The letter set out

“our engagement with you has we believe been courteous, respectful and cognisant of your sick leave but you have, with respect, failed to engage with us to provide information/documentation or to direct us as to where we can locate the information/documentation”.

The letter went on to outline issues the Respondent had with the Complainant. The letter summarised breaches of administrative and funding requirements relating to his role and responsibility as manager of the centre. The letter went on to state that the Respondent found itself in an untenable position. It stated (with regret) that it found itself with no other alternative at the time but to terminate his contract of employment with immediate effect. He was given four weeks’ notice which would be paid to him together with any outstanding annual leave entitlement and a P45. There was no reference in the letter to the Respondent’s disciplinary procedure or compliance with same. The Complainant was not given information regarding an appeal. His P45 issued at the end of his notice period.

Respondent’s Submission and Presentation:

There was no submission or appearance by the Respondent.

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.

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 have reviewed the evidence given at the hearing both orally and in writing.

I was provided with a copy of an employee handbook. On the cover, it stated that it was received on the 24th of November 2014.

The disciplinary procedure is stated to be version 1.1 November 2013.

On page 24 and under Principles it states

“no decision regarding disciplinary action will be taken until a formal disciplinary hearing has been convened and you have been afforded an opportunity to respond. You will be given an opportunity to state your case and challenge any evidence that may be relied upon in reaching a decision. You will be given the right to appeal any aspect of the disciplinary process. “

On page 26 regarding dismissal it states

“if you fail to meet the required standard of work following the issuing of a written warning, you will be called to a meeting with the committee or representatives from same. This meeting may result in your dismissal. An independent party acting on behalf of the company may also attend.

Offences such as gross misconduct may be dealt with directly at this level subject to findings of an investigation.

In cases of alleged gross misconduct, a full investigation will be carried out to establish the facts. You will be called to a meeting with the committee or a representative from same. This meeting may result in your dismissal. At this meeting, you will be given specific details of the alleged misconduct and will be given an opportunity to state your case. If it is clear that gross misconduct has occurred, the result will normally be summary dismissal without pay in lieu of notice.”

I am taking into account the duration of the Complainant’s employment and his performance as the role of manager. Having considered all the evidence, I find in favour of the Complainant as there was an absolute lack of a disciplinary hearing, no fair procedures were applied and the Complainant was not afforded due process in the decision to terminate his employment.

In respect of redress, as the Respondent is in liquidation, compensation is the only form of redress available to the Complainant.

The Complainant is still currently on illness benefit and not in a position to work. The issue of mitigation of losses was raised at the hearing. Based on the evidence of the Complainant and the medical report of the Complainant’s doctor produced at the hearing I am satisfied that the Complainant’s unavailability for work is due to an illness attributable towards the conduct or action of the Respondent and the actions of the successive chairpersons of the Board of Directors of the Respondent.  

Taking all factors into account I award the Complainant the sum of €38,500 being approximately 12 months’ pay.

Dated:   15^th May 2017