Complainant

Respondent

Anonymised Parties

A Retail Assistant

A Retailer

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-00015629-001

07/11/2017

The complainant was dismissed for taking a number of weeks off during the summer which were not approved as annual leave. The complainant alleges the leave had been approved. The complainant alleges that fair procedures were not used.

The Complainant was employed by the respondent since he was 17, as a part-time sales assistant, commencing in November 2011 until he was dismissed in October 2017. He relied on the job to assist in keeping him during his third level education. In April 2017 he spoke to his line manager, Mr A, advising him of his plans to go on holidays for a month during the summer. Mr A’s response was to let him know as soon as possible of the dates involved and the complainant did so in May. The dates were agreed and written up on the wall chart which was the normal way of recording booked leave. The complainant often booked flights in advance of getting approval but only after checking the wall chart to see who else was on leave. The holiday form would be completed after the authorisation was given. Mr A did not inform him that requests for leave of this scale needed to be approved by the CEO. There was a noticeable change in Mr A’s behaviour towards the complainant resulting in his shifts being cut which the complainant believed was an attempt to get him to resign. Mr A informed the complainant that Mr B, the CEO, had overturned his request for annual leave and that his choices were to resign. The complainant refused to resign and went on his planned holidays. On his return a disciplinary hearing was convened resulting in his dismissal.   The complainant alleges that this was a flawed investigation as the HR manager refused to look at his evidence.

The Complainant’s employment ended on 19th October 2017 following a disciplinary process whereby the Complainant was dismissed for an unauthorised absence from work, namely the taking of 4 weeks annual leave which had not been authorised by the Respondent. The incident for which the Claimant was dismissed followed an investigation and disciplinary hearing which were conducted by the HR Officer on 6th October 2017. The Claimant was dismissed by letter dated 19th October 2017 and was also afforded the right of appeal which was subsequently conducted by Mr. B, Chief Executive of the Respondent company. At all meetings the complainant was afforded the right to representation of which he availed.

The Respondent has a practice and procedure in place for the taking of annual leave which the complainant did not follow. He had followed this procedure on previous occasions so was well aware what the process entailed. On a number of occasions, the Claimant requested annual leave for the period 26th July 2017 to 21st August 2017 but was refused same by his Line Manager Mr A. The complainant first notified his Manager of his intention to take an extended period of leave in April 2017 however did not provide the specific dates until late May 2017. The Respondents position is that on each occasion that he requested this annual leave that he was advised that it had not been approved due to the fact that it fell during a busy trading period and would not have been operationally feasible. In the course of the investigation it also transpired that the Claimant had pre-booked his holiday trip prior to submitting the dates for the annual leave which he subsequently requested in May 2017.

 The Claimant had complete disregard for the consequences of taking this unauthorised annual leave by virtue of the fact that he admitted in the course of the disciplinary hearing and appeal that he was well aware week commencing 19th June that the leave which he requested had not been approved. Furthermore, despite being informed by letter dated 27th July 2017 from his Manager of the consequences of taking this unauthorised annual leave, the Claimant proceeded to take the unauthorised leave regardless. It is the Respondents position that the Claimant’s dismissal was not unfair for the reasons set out above.

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 (6) of the Act states;

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

The burden is therefore on the employer to demonstrate that the dismissal is fair.

The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

• • That details of any allegations or complaints are put to the employee concerned
•  That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The Complainant was dismissed on the grounds of gross misconduct because he took annual leave when it had not been approved. The dismissal followed an investigation put in place by the respondent and a disciplinary process. The investigation was a critical part of the process and the investigator did not meet with the complainant. The complainant’s response to the allegation could not therefore have been properly considered by the investigator, and it is clear that he had a different understanding of the central issue i.e. the initial approval of the annual leave in question. It is also clear from the evidence that he sought to read out his response to the investigation at the disciplinary hearing and was not allowed to do so.   The respondent has placed considerable emphasis on the fact that the complainant was clearly informed in advance of taking the leave that it had not been approved and therefore the taking of it in such circumstances constituted gross misconduct. However, the complainant’s explanation of the issue from his perspective could have mitigated the charge of gross misconduct to a lesser charge which might not have resulted in dismissal, had he been allowed the full opportunity to present it. The procedure therefore was flawed and the dismissal was unfair.

The actions of the complainant in going ahead and taking the leave, when it was clear that, whatever about the question of the initial alleged approval, such approval was now withdrawn, contributed significantly to the dismissal. In addition, in relation to mitigation of losses, the complainant has confirmed that he is only available two days per week for work as he has returned to college.

In light of the foregoing, I find that the complainant was dismissed in breach of his rights to natural justice and fair procedures. The complainant, for his part, has only been available for work two days per week since his dismissal and furthermore, contributed significantly to his dismissal and this will be reflected in the quantum of the award.

I find that the complainant was unfairly dismissed and I order the Respondent to pay the Complainant:

The sum of € 3,000 in compensation.

The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

Unfair dismissal. Flawed procedure.