ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007441

	Complainant	Respondent
Anonymised Parties	Housing Maintenance Inspector	Local Authority

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00009954-001	28/02/2017

Date of Adjudication Hearing: 12/09/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 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 as a Housing Maintenance Inspector. He has been employed with the County Council since 27^th January 1997. He had previously worked with another Local Authority from 1981. He was paid €2,100 per fortnight. His employment was terminated on 13^th January 2017. He has claimed that he was unfairly dismissed and has sought compensation.

Summary of Respondent’s Case:

The Complainant’s duties were to assess maintenance request by tenants, to determine if the responsibility rested with the council and if so to determine what work needed to be done. In 2016 his manager became concerned at the non-performance of duties and he was spoken to on four separate occasions between June and August 2016. His responses were vague and unsatisfactory. He stated that he didn’t like his role and wanted to return to Headquarters. In the light of the continued non-performance the matter was referred to Internal Audit for investigation. Internal Audit found that on five occasions between 22^nd to 26^th August 2016 he clocked into work left the depot and went home for a period of time. On all these occasions he was expected to have been carrying out inspections. He never received permission to be absent on any of these occasions. He was called to a meeting on 14^th September to address these allegations of a serious breach of attendance at work. He was accompanied by his trade union representative. He did not deny the allegations. The meeting was adjourned and when it reconvened the union objected to the meeting continuing as the Complainant had not been given an opportunity to improve. The Respondent refuted this and advised that he had been spoken to on four occasions. Again the Complainant had no explanation for his non -performance. The Respondent considered the matter and decided to recommend that his employment be terminated on grounds of gross misconduct. He was given the opportunity to appeal the decision to the Chief Executive. He appealed the decision on four grounds , breach of the Council’s disciplinary policy, breach of GPS protocol, disproportionality and mitigating circumstances. An appeal hearing took place on 5^th December 2016. The Chief executive examined each of the appeal grounds however the decision to dismiss was upheld.

It is the Respondent’s position that his actions amounted to fraud and deliberate falsification of records. By parking his branded Council, vehicle he was bringing it into disrepute and damaging its reputation with its tenants. He was given four opportunities to improve his performance and he failed to do so. The decision to dismiss was reasonable and no alternative to dismissal was appropriate to deal with this gross misconduct. The trust between the Complainant and the Respondent has been broken. The decision to dismiss was fair. This complaint is rejected.

Summary of Complainant’s Case:

The Complainant was called to a meeting on 14^th September 2016 for an alleged breach of attendance at work and performance. While the invitation referred to the Council’s Grievance and Disciplinary policy the meeting was referred to as an investigatory one. At this meeting the Respondent stated that he had been spoken to on four occasions and that Internal Audit had investigated this matter. `The union representative attending this meeting was given a copy of the investigation report and photographic surveillance. A further meeting took place on 29^th September 2016 at which he was represented by his full time union official. At this meeting the Respondent stated that they viewed his performance at work as gross misconduct. The union reminded the Respondent that at no stage did the Respondent indicate that they were considering the matter gross misconduct. The Respondent did not produce any evidence of having spoken to him. The Complainant stated that he never had any such conversations. They also took issue with the use of the GPS for the purpose of staff supervision as this was not in the policy. The Complainant has accepted that he was at home as alleged but he had outstanding health issues. He was then advised that they were recommending dismissal. He appealed this recommendation to the Chief Executive on grounds that they failed to adhere to their Grievance and Disciplinary policy, their policy to adhere to the protocol for use of the GPS, disproportionality of the sanction and mitigating circumstances.

1)Grievance and Disciplinary Procedure

The Complainant had not been advised of the potential of a gross misconduct outcome. He should have been suspended on full pay pending the outcome of the investigation. There was no proof of having spoken to him on these four occasions.

2)GPS

The protocol was not adhered as the GPS was not to be used for the supervision of staff.

3)Disproportionality of sanction

He had not denied the allegations. He had personal issues which he had not disclosed to the Respondent until recently. He suffered from diabetes and had to sue the toilet regularly. He had an unblemished record for 35 years.

4) Mitigating Circumstances

He had attended an addiction counsellor as his diabetes was caused by alcohol abuse.

The Respondent considered these grounds for appeal but they upheld the decision to dismiss.

It is the Complainant’s position that the Respondent failed to apply natural justice and fair procedure. He was not told that the first meeting was to consider a matter of gross misconduct and that it was an investigatory meeting. He was not aware that he was being monitored and that the GPS was being used to closely monitor his movements. He should have been suspended on full pay pending the conclusion of the investigation. He had an unblemished record so the sanction was disproportionate.

This dismissal was unfair as the Respondent did not adhere to its own policies. They had not applied fair procedure and natural justice.

He is seeking compensation. He has been unsuccessful in getting a job and he is on Job Seekers Allowance. Given his age he had no option but to draw down his pension.

Findings and Conclusions:

1) Substantive Matter

I note that the Complainant has accepted that he had absented himself from work on a number of occasions.

I note that the Complainant was paid for all of these non -attendance periods.

I find that this is a very serious matter concerning honesty, trust and integrity.

I note the length of service and his position of responsibility.

I find that the Complainant had committed an act of gross misconduct.

I find that the dismissal was substantively fair.

2) Procedural matter

I note the conflict of evidence regarding being spoken to about these non-appearances.

On the balance of probability, I find that the Respondent did speak to the Complainant regarding these absences from work but it was a casual conversation.

I find that there was no written record of these conversations therefore they do not have the status of a formal caution and may only be considered informal warnings.

I note that the Complainant was not advised of the potential outcome of the investigation when called by the Respondent.

I note that there was no reference to ‘gross misconduct’ until late in the process.

I find that there was confusion whether the investigation and the disciplinary investigation was the one and the same.

I find that there should have been a fact-finding investigation carried to establish if there was a case to answer and then escalate to a disciplinary hearing at which time he should have been advised of the seriousness of the situation and the potential outcome of dismissal.

I am not satisfied that the Respondent gave sufficient consideration to alternatives to dismissal.

I note that he was not formally given an opportunity to stop these non-appearances.

I find that the Respondent may have considered a suspension without pay together with a final written warning instead of dismissal.

I find that given his length of service and his position of responsibility he should have fully understood the seriousness of his actions.

However, I find that the dismissal lacked procedural fairness and natural justice to render it unfair on procedural grounds.

I note that he has sought the redress of compensation.

Mitigation of loss

I note that he only made a few applications for work and then sought to draw down his pension. He cited his age as the reason.

I note that he did not rely upon his health as a mitigation for his actions until his appeal was heard.

I note the Employment Appeals Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

I this case I find that the Complainant did not make much of an effort to mitigate his loss.

Sec 7 (1) (c) (ii) of the Unfair Dismissals Act 1977 states, “if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks’ remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

I find that the Complainant has contributed substantially to his dismissal and so this must be taken into account when determining the quantum of the award.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 decided that the Complainant was unfairly dismissed on procedural grounds.

I have decided that he has contributed substantially to his dismissal.

I have decided that he has failed to properly mitigate his loss.

I have decided that compensation is the appropriate redress.

I have decided that the Respondent should pay the Complainant compensation of €3,750 within six weeks of the date below.

Dated: 20 November 2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Unfair Dismissal