Complainant

Respondent

Anonymised Parties

A Complainant

A Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00008621-001

06/12/2016

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

CA-00004494-001

17/05/2016

The Complainant commenced employment with the respondent on 14th June 1984. He was later promoted to the position of Technical Services Manager on 1st January 1999.

He alleges that he was accused for breaching company procedures in the filling out of company timesheets. The Respondent alleges that he falsified timesheets, which resulted in difficulties for the Respondent in relation to its customers. An investigation meeting was carried out by the Respondent, which led to his suspension. A disciplinary hearing took place, which led to his dismissal. He alleges that he was unfairly dismissed without due process and fair procedures. He filed a complaint with the WRC on the 17th May 2016.

The Complainant worked for the company from 14th June 1984 until the 4th of February 2016. He was initially employed as a Pipe Fitter and promoted to an Installation Manager around 1990. He served as a director between 1991 and 1992. In his time with the company, his responsibilities ranged from mechanical installing, design and manufacturing to the supervision of projects.

The last signed contract of employment that the Complainant has is from January 1999 when he was promoted to the position of Technical Service Manager. He was paid on a salary basis. He did not receive overtime payments (for Monday-Friday hours) or travel payments that would normally apply in the construction and construction related sectors. He did not have fixed hours of work but generally started at 9.00am and finished at 5.30 pm. Where extra hours were worked or extra leave was taken, a reconciliation of hours would be conducted throughout the working year.

The company is a medium size mechanical contracting company specialising in the design, manufacture and installation of piped gas equipment for the medical, laboratory, computer, pharmaceutical and electronic Industries. It was established in 1977 and employs an average of ten people.

On the 6th of January 2016, the company conducted an investigation meeting involving Ms. CS (the company's Managing Director) and the Complainant.

On the 8th of January 2016, the company conducted a second investigation meeting involving Ms. CS, Mr. LS (the company's Chief Executive Officer), Ms. CT (the company's Office Manager and Note taker) and the Complainant.

On the 8th of January 2016 Ms. S suspended the claimant pending further investigations arising from comments and discussion at the meeting of the 6th of January 2016.

On the 11th January 2016 Unite the Union (the union) wrote to Ms. S on behalf of the Complainant setting out concerns about the company's approach in the investigation process and requesting to be copied in on any further correspondence that may be sent to the Complainant.

The company did not respond to the letter from the Union of the 11th of January 2016: but confirmed receipt of same in an email to the Union and in a correspondence to the Complainant on the 13th of January 2016.

Mr. S wrote to the claimant on the 20th of January 2016 scheduling a disciplinary hearing and setting out the charge against him.

''Alleged breach of company procedure, namely it is alleged that on numerous dates time sheet records were falsified".

On the 29th of January 2016, a disciplinary hearing took place on the company premises involving the claimant, Mr. LS Ms. CT, (Note taker) and Mr. TF (Regional Officer of the Union).

On the 1st February 2016 Mr. F wrote to the company reiterating the concerns as expressed at the disciplinary hearing on the 29th of January 2016.

On the 4th of February 2016, in correspondence from Mr. S, the claimant was dismissed from his employment.

On the 8th February 2016, the union wrote to the company setting out the grounds of the claimant's appeal under the following headings:

·         Breach of procedure/hours of work

·         Tracking Device

·         Fair Procedures

·         Duty of Care

On the 23rd of February 2016, the company supplied confirmation of who would conduct the appeal and included the company's notes of the investigation meetings of the 6th and the 8th January and the disciplinary meeting on the 29th January 2016.

Mr. PM of AB Safety Training was appointed by the company to conduct the appeal into the Complaint's dismissal.

The first stage of the appeal was conducted on the 21st March 2016 on the company premises. The Complaint, Mr. M, Mr. F (Unite) and Ms. CT (MIPS Office Manager and Note taker) attended the meeting.

At the meeting of the 21st March Mr. M provided a number of written questions: as the claimant answered the questions, he wrote the answers under the questions.

On the 6th April 2016 Mr. M issued the claimant correspondence and further documents that had arisen from the meeting of 21st March 2016 including his notes from that meeting.

The second stage of the appeal meeting with Mr. M took place on the 18th April in the Premier Inn, Swords, Co Dublin.

On the 26th April 2016 Mr. M issued his findings; he upheld the employer's decision to dismiss the Complainant.

The Complainant's cases were referred to the Workplace Relations Commission (WRC) in May 2016 under the Unfair Dismissals Act 1977 and in December 2016 under the Minimum Notice and Terms of Employment Act 1973.

Day 1 of the cases was heard on the 13th December 2016 in the Ardboyne Hotel, Navan, Co Meath at 12.00 noon.

Day 2 of the hearing is scheduled to be heard on the 28th of March 2017 in the Ardboyne Hotel, Navan, Co Meath at 12.00 noon.

Contract of Employment and Handbook

In 2013 the company sought to introduce new contracts of employment and a new handbook. The union engaged in negotiations with the company on these matters on behalf of its members employed with the company, including the Complainant. There was no agreement reached concerning the proposed changes. This engagement is detailed in a number of correspondences between parties from the 28th June 2013 to the 20th March 2014.

For the purpose of these proceedings the key point that arises from the engagement referenced at 2.1. above is whether or not the company is entitled to rely on their proposed changes to the Complainant's contract of employment and the company handbook either through clear agreement or acquiescence: The Complainant submits that this not the case and that the proposed changes were bound up in collective engagement with the union that never reached agreement. The Complainant further submits that two rounds of engagement between the union and the company are referenced and overlapped by the company to create confusion for the lenses of a third party for two clear reasons: (1) to give the impression that the Complainant's contract of employment was changed to allow the company install a tracking device despite the clear understanding of the claimant that this would not happen (2) to give the impression that the change of practice in filing in Expense Sheets to filling in Expense and Time Sheets was understood and agreed. This requires the examination of these episodes.

Point (1) of 2.2- the Contract and the Handbook

28th February 2013 – 11th July 2013

On the 28th of February 2013 company wrote to all union members concerning the need to "comply with new Employment Directives" and advising that it is "essential for us to re-issue your new Employments contracts and provide Employee Handbook''. (Appendix 25 - See page 179 for example letter)

The union wrote seeking a meeting about proposed contracts and handbook. A meeting took place on the 19th of June 2013. The details of what was discussed are set out in correspondence from the company and the union on the 28th of June 2013 and the 11th July 2013 respectively. (Appendix 25- Page 174 -182)

Between the meeting of the 19th of June 2013, involving a Regional Officer of the Union (Mr. TF) and the letter from him on the 11th of July 2013 a meeting took place involving the company's Chief Executive Officer, Mr. LS and two Unite reps (Mr. D OR and Mr. LF) on behalf of the union membership within the company. The meeting was designed to discuss and try to advance any issues that the workforce had with the proposed contracts and handbook. The meeting was ended abruptly by Mr. S who physically tore up his copy of the proposed contract and dismissed any proposals.

The union wrote to the company on the 11th of July 2013 recording how events had unfolded at the meeting explained at 2.5. The company never rejected the union version of events. At that juncture, the union and its members reasonably took the view that the 2013 proposed contracts and handbook had no standing.

27th February 2014 -23rd August 2016

On the 27th of February 2014, the company issued all union members a memo concerning unilateral changes to their contracts of employment and changes to the law that, in the HR Manger's view (Mr. TS - later to become the Managing Director), would affect union members' daily work. This memo also advised that for all "other items, please refer to your Employee Handbook”. This was the same handbook that Mr. S dismissed seven months earlier. (Appendix 25- Page 184).

"You then go on to advise that for all other items, please refer to the Employee Handbook. Amendments to the employee handbook featured in the company's ' previous efforts to unilaterally change our member’s contracts of employment. At the time, no agreement was reached on proposed amendments due to the company terminating the discussions and as such the current Employee Handbook has no standing with Unite members."

The company responded on the 20th of March 2014 to the union's letter of the 7th of March 2014 in a nine-page letter that was, in the main, extracts copied and pasted from various advice websites in an attempt to justify the elements in the memo of the 27th of February 2014. This letter, under the heading "Source: Sample Contract of Employment" advises that "A company vehicle is supplied by the Company and may with permission be used for private use. The vehicle is fitted with satellite tracking system for security of vehicle and records all activity". The company have sought to rely on this letter and this clause as their steps in advising the claimant of the introduction of satellite tracking system to company vehicles in general and to his specifically. They argued that this clause should have been brought to the claimant's attention by his union.

The Complainant and the union submit that this clause is by way of example rather than instruction and that moreover, the union had reflected its members’ views, including the claimant's, in its letter of the 7th of March and that the language in the company letter of the 20th of March is different form the language in their own proposed contract and proposed handbook. In the proposed contract and proposed handbook of 2013 the company references vehicle tracking as follows: "The Company reserves the right to monitor or remotely track company vehicles at all times". The complainant submits that this is illustrative of the company's attempts to produce various documents (nine-page letter of March 2014 draft, contract of employment and a twenty-eight-page handbook of 2013) and argue at a later stage that an agreed and or understood change had taken place.

The episode of the proposed employed handbook continued into 2016 when the company sought to implement and seek agreement for an increased employee handbook.

On the 3rd of June 2016, the union wrote to the company again advising of the lack of standing of the company handbook among its members. The matter ultimately resulted in a facilitation hearing at the Workplace Relation Commission (WRC), where it was agreed that the company would furnish the union with a new and edited version of the employee handbook for consideration. The company have not furnished the union with the new draft to date as recommended by the WRC.

A symphonise of the above events are also contained in a letter from the union of the 18th of May 2016.

In summary, regarding the contract and handbook, the claimant submits that despite the company's attempts to create confusion it is not the case that the proposed contract of employment or the proposed draft employee handbook were agreed by the claimant, either through clear agreement or acquiescence. It is important to note that the only signed contact that the company have produced is the Complainant’s from 1999.

The Complainant submits that the introduction of the Expense and Time Sheets as opposed to Expense Sheets was introduced by the company at some stage in the period between early 2013 and 2015. He submits that he didn't notice the change until late 2015. He submits that he had always filled in his expense sheets retrospectivity using his diary as a reference. He further submits that any correspondence regarding proposed change to contractual terms or work practices, including the company memo of the 27th of February 2014, were subject to agreement being achieved with the union on his behalf.

In addition to operating on the basis that any proposed change to contractual terms or work practices would be dealt by the union, the Complainant had a number of periods of absences from the workplace while these issues were under discussion between the company and the union, the company and the local reps. The period of absences were as follows:

·         January 2013 - April 2013 - 1st Hip Operation

·         March 2014 - July 2014 -2nd Hip Operation

·         June 2014 - August 2014 - Bereavement Leave

It is also important to note that arising from the absence of fixed hours of the claimant over the years the parties would engage in a reconciliation of hours of hours worked over a given period of time to establish if hours are owed to either party. We return to this point in more detail below.

Vehicle Tracking Devices

The use of tracking devices on company vehicles has caused much contention within the company. Two senior and long serving members of staff and union members have specific clauses in their contacts of employment advising that their vehicles would not have tracking devices in them. The Complainant submits that he was more senior than these two individuals and received commitments from a company director in the past that his vehicle would not be fitted with a tracking device.

The company relies on the proposed 2013 contracts of employment and Employee Handbook and their letter to the union of the 20th of March 2013 as evidence that the claimant should have understood and been aware that the company vehicle he drove was fitted with a tracking device. The Complainant and the union reject the company's position.

It has been adduced in evidence from Ms. S at the hearing of the 13th of December 2016 that at no stage did she or any other representatives of the company sit down and explain the installation of the tracking device in the vehicle he was driving with the Complainant upon his return to work in August 2014. The historical expense sheets were now to be considered as expense and time recording sheets. It is submitted on behalf of the claimant that this would be the least a reasonable employer should have done in the circumstances.

The case of Foran v. Galen Ltd, Craigavon UD1894/2010 is similar to the instant case in that the employer installed a tracking device in a car used by the Complainant for a number of weeks. The data contained in the report on the movements of the claimant's car did not correspond with the claimant's diary entries for the weeks in question. The complainant was invited to a formal disciplinary meeting where he was informed that his employer no longer had the required trust in him as an employee and the employer had evidence of breach of contract and fraud. The employer stated that the failure to inform the employees of the surveillance was justified as to do so would have changed their behaviour. The EAT stated that the employer's decision not to inform staff of its covert monitoring policy could be regarded as a "breach of trust" by the employer. The EAT further noted that evidence presented based on the surveillance fell short of being the best available and the employer failed to provide the Complainant with all of the information used against him. The claimant was awarded €40,000 in compensation for unfair dismissal.

The investigation process

As advised above two investigations meeting took place (6th & 8th of January 2016), the first involved Ms. S and the Complainant. The company have submitted that the investigation was initiated on foot of a request by the Complainant in December for an analysis of his hours; this is rejected by the Complainant. The Complainant submits that it was Ms. S that raised the idea of a look back of hours worked. He submits that she raised this on a number of occasions after his return to work in August 2015. The claimant submits that this wasn't new, as over the years he and the company would engage in a reconciliation of hours worked over a given period of time to establish if the he was in the 'red' or the ‘black' regarding hours.

Ms. S presented a significant amount of documentation at the meeting of the 6th January in support of her contention that the claimant had falsified company records. {Spread sheet of vehicle data tracker, toll receipts, expense forms etc.) Two days later, on the 8th January, the second leg of the investigation meeting took place involving the claimant meeting with Ms. CS, Mr. LS (the company's Chief Executive Officer), Ms. CT (the company's Office Manager and Note taker).

The unfairness of the investigation process was set out in a correspondence by the union on the 11th January 2016 at:

That an initial investigation meeting has taken place (conducted by you on a one to one basis), where our member was not given the opportunity to consider the concerns put to him or the opportunity to have a representative with him.

That having established and accepted that on many of the occasions where Mr. D seemed to be in close proximity to his home at an early stage in the evening that he was visiting the grave of his recently deceased wife, the company proceeded with a second meeting involving three company representatives and Mr. D.

That Mr. D was not given the opportunity to have a representative with him at the second meeting.

Confirmation that the company installed a tracking device on the vehicle Mr. D was driving without his knowledge.

Inappropriate commentary from Mr. LS concerning Mr. D's further employment with the company and reference to his late wife; ‘'you would be better of resigning” and “L would be disappointed”.

It is submitted on behalf of the Complainant that the company's approach at the investigation stage was unfair on a number of further grounds:

1st Investigation meeting 6th January 2016

·         The first meeting took place over three/ four hours.

·         In the company’s notes of the meeting Ms. S advised that she had already asked Mr. MF (Director) and Mr. LS (CEO) if there was agreement in place regarding the claimant's claim that he had an agreement that no tracking device would be put in his vehicle. It is submitted on behalf of the claimant that either Ms. S had discussed the case with Mr. F and Mr. S to counter any explanation offered by the Complainant at the investigation stage, which would be inappropriate given Mr. S's later involvement and at the very least an illustration of subjective bias by Ms. S before the process had begun or the process had begun in advance of the meeting with the claimant on the 6th.

·         The company notes of the 6th and evidence form Ms. S from the hearing of December 2016 advise that the Complainant had got emotional on number of occasion, particularly when the passing of his wife came up. It is submitted on behalf of the Complainant that a reasonable employer would terminate such a meeting and only reschedule after setting out in writing the possible ramification arising from the process.

2nd Investigation meeting 8th January 2016

·         Notice of the second stage of the investigation was given by text message on the 7th of January.

·         There were three representatives on behalf of the company while the claimant was alone.

·         The company CEO (Mr. LS) suspended the claimant at the onset of the meeting.

·         The company CEO also engaged in inappropriate commentary at the start of the meeting concerning the claimant's further employment with the company when he referenced the claimant's late wife, as referenced in the union letter of the 11th January. At no stage in correspondence or through oral testimony, has the company rejected the Complainant's version of events regarding Mr. S's comments.

It is submitted that the approach by the company is outside what could be considered fair procedures at investigation stage. The case of Collier v. Pepsico International Food & Beverages Limited [UD1672/2009] concerned an employee who had been dismissed following the discovery of a serious stock discrepancy. The Tribunal found that the employer had not acted as a reasonable employer would have acted in the circumstances because the employee had not been given copies of the stock losses or the opportunity to review those figures and the basis on which they were calculated. The employee did not receive sufficient prior notification of the investigatory meeting to enable him to prepare properly for it. The employer was also held to have breached fair procedures when it allowed one particular representative to take part in both the investigatory and disciplinary meetings and also be consulted at the appeals stage.

In the case of Didenka v. Bradshaw T/A The Station House Bar and Grill UD1299/2010, the EAT stated that "to constitute full and fair investigation, the alleged wrongdoer must also be interviewed. Fair procedures require the allegation be put to the claimant and he be given an opportunity to respond to the allegation." The EAT upheld the claimant's claim for unfair dismissal in circumstances where he had not been given any opportunity to improve his conduct prior to being dismissed.

The Disciplinary Process

The disciplinary hearing took place on the 29th January 2016 on the company premises involving the claimant, Mr. LS (CEO) Ms. CT (Note taker) and Mr. TF (Unite). It is submitted on behalf of the Complainant that the company's approach at the disciplinary hearing was unfair on a number of grounds:

·         The hearing was conducted by Mr. LS (CEO), despite his involvement in the investigation process.

·         Ms. CS (Managing Director) was involved in the disciplinary hearing despite her role in the investigation process.

·         There was ongoing discussion between Mr. S and Ms. S regarding the disciplinary process as advised in her evidence on the 131h of December 2016.

·         Mr. S advised that the appeal of his decision would be up to him in the recorded exchange with the union official (Mr. F), as follows:

TF- Have you a mechanism within your disputes procedure for an appeal process for Mr. D because presumably a decision is going to be made now so have you a mechanism for an appeal of that decision

LS- There is no mechanism for an appeal - I am the CEO of the company

TF- No appeal

LS- I'm not saying there is no right of appeal because you do have the right to appeal my decision to a Rights Commissioner

TF- We have the right to do loads of things, we have a right to engage in

collective action against you and your company - we have right to do a lot of things - I'm asking you does your disputes procedure provide for an appeal

LS- You can make an appeal but it has to come to me

TF- So the appeal is to the decision maker

LS- Yes

TF -So you are going to be the person to make the decision in terms of should Mr. D get a disciplinary sanction - is that fair to say

LS- That's true

TF- Ok and the person to appeal/hat decision is also you?

LS- Because I am the Chief Executive (Appendix 31 A- recording of disciplinary meeting 29th January 2016)

On the 1st February 2016 Mr. F wrote to the company reiterating the concerns as expressed at the disciplinary hearing on the 29th of January 2016. In his concluding comments Mr. F advised:

" It is apparent that Mr. D spent time during the working week visiting his wife's grave; he accepted this at the investigation stage as well at the disciplinary stage. However, given the flexibility attached to his hours of work, permission given by Ms. S, there is no basis for any disciplinary sanction to emanate from this process. Moreover, given the circumstances this drawn-out process is tantamount to harassment of Mr. D. It is incredible that an employer could feel justified in secretly tracking a worker, with almost thirty-two years' service, to his wife's grave within months of her death. With this in mind, and in the interest of basic decency, I would ask that the matter is brought to a close as soon as possible, that no disciplinary sanction would be issued and that an apology would be issued to Mr. D, that the company would engage with Mr. D and his representatives where necessary with a view to assisting him in his return to work following his unnecessary suspension and this painful process".

It is submitted that the approach by the company is outside what could be considered fair procedures at the disciplinary stage. A central tenant of fair procedures is that the person sitting in judgement should be free from bias. It is submitted that Mr. S was not and could not be free from bias.

The case of Leigh v. SpeedKing Couriers Ltd t/a Fastway Couriers (Midlands) UD28/2014 dealt with the issue of overlap between the investigation and disciplinary process. The EAT expressed concern at the dual roles of management in the investigation and disciplinary process and noted a clear failure by the respondent to maintain a desirable separation between them.

The appeal process

As advised above the appeal process was conducted by Mr. PM of AB Safety Training. The first stage of the appeal was conducted on the 21st of March 2016 and the second 18th April 2016. On the 28th April 2016 Mr. M issued his findings; he upheld the employer's decision to dismiss the claimant.

Despite being asked to conduct an appeal of the charge against the Complainant, namely "Alleged breach of company procedure, namely it is alleged that on numerous dates time sheet records were falsified", Mr. M also found that the Complainant had:

·         Repeatedly & systematically falsified your records

·         Gained financially from your actions

·         Not worked to commonly acceptable standards of behaviour

·         Disregarded Management instructions to read documents

·         Put yourself in a position of ignorance which lead to your Termination of Employment.

It is submitted that Mr. M went well beyond the terms of reference of the apply process and consequently rendered his outcome unfair.

It is respectfully submitted that Mr. M's role as the appeal officer in the Complainant's case was entirely inappropriate and unfair arising from his economic relationship with the company as contractor providing training. As an individual economically dependent on the company it would be impossible to establish the absence of a subjective bias. In the case of Connolly v. McConnell [1983] IR 172, the Supreme Court stated that '"when a person holds a full-time pensionable office from which he may be removed, and thus be deprived of his means of livelihood and of his pension rights, the domestic tribunal or body having the power to remove him are exercising quasi-judicial functions. Therefore, they may not remove him without first according to him natural justice. He must be given the reasons for his proposed dismissal and an adequate opportunity of making his defence to the allegations made against him -audi alteram partem. The members of the Tribunal must be impartial and not be judges in their own cause-nemo iudex in causa sua. They must ensure that the proceedings are conducted fairly."

It is respectfully submitted that Mr. M did not have the experience to deal with the appeal and was not an impartial party in the decision-making process. In evidence at the first hearing he advised that he had never dealt with an appeal hearing and he had little experience in such matters.

Proportionately

It is accepted by the Complainant and clear from the notes of the disciplinary meeting that there were a number of occasions that the expense sheets placed him at a different location than where he was. The Complainant submits that the flexibility attached to his role and the clear position put to him on his return to his work after his bereavement leave from Ms. S, "do the hours you can - no pressure" allowed him significant flexibility on a day to day basis. He also completed his expenses (as opposed to time and expense sheets) sheets as he had always done; weeks or sometimes months later by reference to his diary. The Complainant submits that he was getting on with the job, dealing with his bereavement and trying to look after his family at a difficult time, in the full knowledge that he may owe hours to the company and that this would need to be reconciled at a certain point in time.

Without prejudice to the arguments advanced above concerning unfair procedures and the Complainant's submission that he did not falsify company records and was working within the understood parameters, it is submitted that even if the claimant had falsified company records, the circumstances attached to the triggering of the investigation process could not justify a dismissal. The Complainant had just less than 32 years distinguished service with the company. He lost his life partner in very traumatic circumstances in June 2014. He returned to work in in August 2014. In January 2016, the company advised that there were twelve occasions that his whereabouts did not reconcile with their records; four of the occasions were explained and on eight of the occasions it was established that he was at his wife's grave.

In such circumstances a reasonable employer would be expected to exercises their duty of care to the employee; advise or provide extra supports, including bereavement counselling. If a disciplinary process then became necessary, corrective action could have been taken. If it proved absolutely necessary to implement a disciplinary sanction, consideration should have turned to something short of dismissal in the first instance.

The company did none of this.

The Complainant denies that any offers of alternative working arrangements were offered, as advised by the employer. He further submits that letter of June 2014 regarding flexible work was only furnished to him at the appeal process.

The Law

Section 6(1) of the Unfair Dismissals 1977 Act (the Act) provides that:

Subject to the provisions of this section, 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 were substantial grounds justifying the dismissal.

The act provides the presumption that all dismissals are deemed unfair and puts the burden on the employer to establish that the dismissal was fair. Subject to the direction of WRC otherwise, the first hearing saw the completion of the company's oral evidence and the cross examination of same by the claimant's representative. In the first instance it is respectfully submitted that the company has not met the burden of proof from a procedural or proportionate point of view.

It is necessary to consider the proportionality of the employer' s decision to dismiss an employee in light of the surrounding circumstances. The test for reasonableness was set out by the EAT in Noritake (Ireland) Ltd v. Kenna UD88/1983:

1. Did the employer believe that the employee misconducted himself as alleged. If so,

2. Did the company have reasonable grounds to sustain that belief? If so,

3. Was the penalty of dismissal proportionate to the alleged misconduct?

It is submitted that the company failed to consider the totality of the case, specifically the complainant's recent bereavement. It is further submitted that the decision by the company to dismiss the complainant on foot of covert surveillance and a flawed investigation, disciplinary and appeals process was disproportionate.

Minimum Notice

Section 4 of the Minimum Notice and Terms of Employment Act 1973 (Minimum Notice Act) provides inter alia: (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks [notice]. The claimant has in excess of fifteen years' service with the company and if his unfair dismissal claim is successful he would be entitled to notice payment of not less than eight weeks.

Section 12 of the Minimum Notice Act as amended by section 41 of the Workplace Relations Act 2015 (WRC Act) provides:

"(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute as to the entitlements of an employer under section 6 may include such directions as the adjudication officer considers appropriate."

Section 41(6) of the WRC Act provides:

"Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of6 months beginning on the date of the contravention to which the complaint relates."

Section 41(8) of the WRC Act provides:

"An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause "

It is submitted on behalf of the Complainant, that his claim under the Minimum Notice Act, was delayed due to "reasonable cause". The Complainant had asked the union to advance his claim under the Minimum Notice Act; implicit in that request is that the claim would be made in good time. The union failed to advance the claim within the required six months provided at 41(6) of the WRC Act, but did advance it within the twelve months allowed under section 41(8) of the WRC Act. The claimant was reasonably entitled to believe that his claim was advanced in good time and we would respectfully request that he be allowed the time extension provided provide at section 41(8) of the WRC Act.

Losses incurred by the claimant

The following is a “Schedule of Losses” submitted by the complainant:

As explained above the complainant had moved into a supervisor role over the years. In 2013 and 2014 he had both of his hips replaced. He submits that he would not be physically able do the work of an onsite craft worker, despite his qualifications. He submits that he is constrained from getting a supervisory role with other mechanical employers in the absence of a reference form the company. He advises that, notwithstanding the growing construction sector, the mechanical sub-sector is relatively small and tightly- knit.

With the above in mind the complainant immediately sought to retrain himself when he was dismissed. He began training as an ambulance driver and paramedic in 2016, at his own expense. He has received a commitment of work on completion of his training and examination.

He has regained employment from April 2017 and the losses of the complainant are set out in the Schedule attached hereto.

Summary and Conclusion

On the basis of the forgoing, it is respectfully submitted that the claimant was unfairly dismissed.

It is submitted that the investigation, disciplinary and appeal process were entirely outside what would be expected within the provisions of fair procedures and natural justice.

It is submitted that in the circumstances the claimant is entitled to rely on the time extensions provided from under the WRC Act in respect of his claim under the Minimum Notice Act.

It is submitted that his claim for loses are appropriate and justified in the circumstances.

The Complainant commenced employment with the respondent on 14th June 1984. He was later promoted to the position of Technical Services Manager on 1st January 1999.

The respondent is engaged in the design, manufacture, installation and maintenance of piped gas systems for the Medical, Laboratory, Educational, Pharmaceutical and Electronic Industries. Many of their clients are hospitals, nursing homes, and hospice/palliative facilities

A letter was issued to all employees dated 11th February 2013 enclosing updated contracts and introducing handbooks

In the contact of employment under the heading ‘Vehicle Tracking’ it states;

The company reserves the right to monitor or remotely track company vehicles at all times.

Further, in the employee handbook it states:

Medical and Industrial Pipeline Systems Ltd reserves the right to remotely monitor and track vehicles.

In the letter to the Complainant’s representative, Mr. TF, dated the 13th March 2014, that was copied to all staff it states ‘The vehicle is fitted with a satellite tracking system’.

By letter dated 22nd April 2013 the respondent wrote to the Complainant introducing the new time-sheet and expressing the legal requirement for him to record his hours for Organisation of Working Time Act compliance and requesting him to return the signed contract or if he was unhappy with any of the terms therein to negotiate on same. No response was forthcoming. In the same letter the respondent again requested the Complainant to return his signed contract.

In or about May 2013 Mrs SD approached the Complainant to discuss the contract as he failed to return the signed contact. The Complainant advised that he had not received the documents. Ms. SD re-issued them with the instruction to read the documents as there were policies therein of which he may not have been aware it and if there was anything he was unhappy about to revert.

The document was not returned. Mrs S asked for the document to be returned approximately 2 weeks later and Mr D said he had not yet got around to it.

The respondent met with Mr. F on the 19th of June 2013 on a different matter and the issue of the 2013 contracts was discussed.

In July 2013, the respondent discovered that a number of employees were completing time sheets incorrectly, Mr. S had a conversation with the Complainant about this and an agreement was made that the Complainant would adhere to proper procedure.

In November 2013, the respondent had a conversation with the Complainant and offered him the same terms as discussed with the fitting staff in regard to overtime, Saturday pay, time for time and travel time pay the Complainant declined the offer as he said it would interfere with is taxes and his hours always balanced out. But would let me know if that changed.

By memo dated 27th February 2014 the respondent advised all staff advising of changes in their handbook. The points highlighted in the memo include:

(i)                  ‘you are no longer allowed, regardless of what is stipulated in your Contract to use the company vehicle for private use’

(ii)                ‘Time sheets are to filled in on a daily basis and accuracy is vital’

(iii)               ‘Any discrepancy, to your benefit or detriment, within your wages or your expenses payment must be brought to the attention of Management with 1 month of the original claim’ (sic)

The Complainant was on sick leave between 26th March and 17th July 2014. Before the end of his sick leave the Complainant advised that his wife had become very sick.

The respondent wrote the Complainant on 23rd June 2014 offering him the opportunity to change how he worked to give him the time he needed and to let MIPS know if there was anything they could do for him/them. The Complainant was thankful of the gesture but advised that he planned to come back to work as soon as possible. He declined the offer. This offer was dependant on his accurate filing of timesheets

Sadly, the Complainant’s wife passed away.

The Complainant telephoned the respondent to advise that he was ready to return to work, it was explained that the respondent required a Fitness Certificate from an Occupational Health Professional before the Complainant could return him to duty.

The Complainant attended the Meridian Clinic for an assessment and a fit to work certificate was issued.

When the Complainant returned to work the respondent re-issued the offer for him to choose how he worked and just to bill the company for those hours. Again, the Complainant was thankful but declined saying that he felt like he needed structure but was unsure if he wanted to continue working but would give at least 6 months notice if he chose to leave.

In December 2015, the Complainant asked the respondent to check his timesheets because he said that the respondent owed him time.

After this request the respondent reviewed the Complainant’s time sheets and noticed that they did not correspond with his receipts and tolls. The respondent reviewed the tracker on the Complainant’s company vehicle and found that there were inconsistencies.

On or about the 16th of December 2015 Ms SD approached the Complainant and advised that she I didn’t have an answer for him about worked up time because she was having difficulty reconciling his timesheets.

Mrs. S was unable to explain the irregularities and after the Christmas break on the 4th of January 2016 the Complainant was issued with notice of an investigation and issued him with a Request to Attend an Investigation Meeting for that Wednesday (8th January)

The Complainant was afforded the opportunity of having a co-worker present.

An Investigation Meeting was held on 6th January 2016. The Complainant advised that he had received a verbal assurance from the previous Managing Director, Mr. MF that he would not have a tracker on his vehicle and therefore the respondent could not rely on the evidence from the tracker. The respondent refutes this, while two employees were excluded for the obligation to have a tracker on their vehicles, this was agreed in writing with those specific employees, no such agreement was in place for the Complainant. The Complainant advised that he did not accept the terms of his 2013 contact. The meeting was emotional. It was explained to the Complainant that the company invoices customers using a number of different assessment procedures including on the basis of the time sheets submitted by him and, if those time sheets were wrong, the company could be open to repercussions. Ms SD used a large excel spreadsheet to demonstrate the contradictions between what Mr D had claimed as his working day and the locations recorded by tolls, purchase receipts and satellite tracker data. The excel spreadsheet also demonstrates sites that had not been attended despite timesheet records and what appeared to be Mr D’s avoidance of toll booths. The Complainant refused to sign the minutes of the meeting.   These minutes were presented to him on the 8th January at the suspension meeting but agreed on tape that it was a true and accurate account.

By telephone and reconfirmed by text message on the 7th January 2016 the Complainant was invited to ‘the next stage of the procedure’ on 8th January. Mr D had been advised in the phone call of his right to have someone present with him at the meeting.

The Complainant signed a ‘consent to recording’. The decision had been taken to suspend the Complainant on full pay to allow both the proper investigation of the allegations that:

‘you falsely stated the hours you worked on the company time-sheet and signed them as being a true and accurate account of your working week’

Ms SD explained that because the Complainant had raised the possibility that he had been unfit for duty and the company had an obligation to ensure he was capable and competent to carry out his duties and upon certification of fitness to work the Complainant could return to work after the suspension. A letter dated 8th January 2016 was issued confirming the suspension.

On 18th January, the respondent received the Complainant’s fitness to work certificate, which was dated the 12th January 2016

By letter date 20th January the Complainant was invited to a Disciplinary Hearing on 22nd January, on the Complainant’s request this was postponed to 29th January.

The Complainant consented to the meeting being recorded. During the meeting the Complainant’s representative, Mr F stated that ‘there was almost an admission and acceptance from Dave that he possibly was in breach of company procedures’, however Mr F states that there was a ‘lack of company procedure’. He added that the Complainant ‘did not deny anything but rather requested evidence’.

The company identified a number of occasions where the Complainant stated he was at a client’s site however his van was not there. On most of these occasions the Complainant’s van was in the Tallaght region. Also, days where Mr D recorded hours in excess of hours completed.

By letter dated 4th February 2016 the respondent wrote to the Complainant advising that the Complainant’s conduct amounts to gross misconduct and he was summarily dismissed.

The letter outlined the specific incidents discussed during the Disciplinary Hearing including an occasion on 15th June 2015 where the Complainant on his time sheet stated to be at the Laura Lynn Children’s Hospice Centre, his vehicle was tracked driving around Tallaght during those hours however he admitted not being there as stated. Also, an occasion on 3rd September 2015 where the tracker registered the van in the respondent’s factory when the Complainant was supposed to be in Cherrywood, the Complainant’s representative advised that there was no financial gain to the Complainant therefore no gain. Another incident on 27th August when the Complainant was supposed to be in National University of Ireland Maynooth, but his vehicle was tracked travelling around Tallaght, to Dunnes Stores, Aldi and home and attending Tallaght Hospital which was not recorded on his timesheet, the Complainant advised that he was either at the graveyard or picking up his daughter. Private use of company vehicle is not permitted unless you register for Benefit In Kind.

By letter dated 8th February 2016 the Complainant appealed the decision.

By e-mail on the 29th January 2016 Ms. TSD wrote to Mr D and copied Mr F explaining the procedure for appealing any decision that may be made and the requirement for MIPS to engage with a third party to chair said appeal. By letter dated 9th February the Complainant confirmed that a third party would have to be engaged to hear the appeal. By letter dated 15th February the Complainant was given the option as to who heard his appeal.

The appeal hearing was heard on 21st March 2016.

The Complainant consented to the meeting being recorded.

At the hearing the Complainant’s representative stated ‘it has been agreed that of the 12 occasions, 8 of them, he was at his wife’s grave’.

The Appeal hearing was reconvened on 18th April due to new evidence coming to light and due to concerns raised by the Complainant.

At the meeting on 18th April 2016 the Complainant advised that he had not seen the letter dated 24th June 2014 from the respondent offering the Complainant the opportunity to work and be commensurately paid for self-selected hours.

By letter dated 26th April 2016 the results of the rehearing were issued to the Complainant. The letter upheld the dismissal.

LAW

In the case of Sean Purcell v Last Passive Limited t/a Aircoach (UD1223/2014) the Tribunal held that the “respondent company acted reasonably at all times and that substantial grounds existed justifying dismissal, that is, that the appellant’s actions constituted a serious safety risk and were in clear breach of company policies.”

In the case at hand the Complainant failed to perform the job he was meant to do, as he failed to attend client sites to service medical on other critical gas equipment. This meant that this equipment was not being serviced as required and this potentially posed a safety risk to the users of that medical equipment. The Complainant was expected to attend sites to review their progress and quality check the work and bring feedback to the Engineering department as one of its safety and quality measures.

It is submitted that the respondent in his particular case, investigated thoroughly and furnished the Complainant with all information available to them as part of the process. 

In the case of Looney & Co. Ltd. v Looney UD843/1984, (taken from Mary Redmond, Dismissal Law in Ireland) the EAT said that it is their responsibility to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.”

It is therefore submitted that the respondent acted reasonably in the circumstances and we submit given the situation, that the dismissal was fair in accordance with Section 6(4)(b) of the Act.

CA-00004494-001 Unfair Dismissals Act, 1977

Section 6(1) of the Unfair Dismissals 1977 Act (the Act) provides that:

Subject to the provisions of this section, 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 were substantial grounds justifying the dismissal.

The onus is clearly on the employer to adhere to the principles of due process, fair procedures and natural justice when carrying out investigation meetings, disciplinary meetings and appeal meetings.

The importance of fair procedures is highlighted, not only by case law, but also by the provisions of Section 6 (7) of the Unfair Dismissals Act, 1977, and further by the code of practice on grievance and disciplinary process (SI No 146 of 2000).

Based on both written and oral evidence given at the hearings, I find as follows:

The Investigation Process

The Respondent carried out investigation meetings on the 6th January 2016 and on the 8th January 2016 into allegations that the Complainant had falsified company records. The meeting of the 1st January 2016 was chaired by Ms. CS (MD).   The meeting on the 8th January 2016 was initially chaired by Mr. LS (CEO) and was later chaired by Ms. CS (MD). The Complainant was suspended on the onset of this meeting.

Disciplinary Process

A Disciplinary meeting took place on the 29th January 2016. This meeting was chaired by Mr. LS (CEO). Mr. LS had already been involved in the investigation process. Ms. CS was also involved in the investigation process. She was also involved in discussions with Mr. LS during the course of the disciplinary hearing.

The case of Leigh v. SpeedKing Couriers Ltd t/a Fastway Couriers (Midlands) UD28/2014 dealt with the issue of overlap between the investigation and disciplinary process. The EAT expressed concern at the dual roles of management in the investigation and disciplinary process and noted a clear failure by the respondent to maintain a desirable separation between them.

The Appeal Process

Mr. PM carried out the Appeal meetings on the 21st March 2016 and on the 18th April 2016. He issued his findings, confirming his decision to dismiss the Complainant. Mr. PM had an economic relationship with the company, as he was a contractor, who provided safety training to the company. As an individual, economically dependent on the company, it would be impossible to establish the absence of a subjective bias.

I find that the Complainant was not afforded due process and fair procedures in the manner in which the disciplinary and appeal process was carried out. The investors were also involved in the disciplinary process, and that was unfair to the Complainant. The Appeals officer had an economic interest in the company and therefore, he should not have been involved as the Appels Officer.

CA-00008621-001 Minimum Notice & Terms of Employment Act, 1973

The Complainant filed his complaint with the WRC on the 6th December 2016. The complaint was not filed in line with Section 41(6) of the Workplace Relations Act 2015. The Complainant filed his complaint outside the 6-month time limit as is allowed for under this act. The Complainant argued that he should be allowed an extension of the time limit as is allowed for under Section 41(8) of the Workplace Relations Act 2015. He stated that he understood that his Union Representative had filed his complaint on time. However, the Union Representative failed to do this when he filed the complaint under the Unfair Dismissals Act 1977. The Union Representative stated that this was an oversight on his part.

I accept that the Complainant was not at fault, as the Union Representative failed to file the complaint on time. Therefore, I will allow an extension of the time limit in relation to this particular complaint.

Workplace Relations Commission Adjudication Officer: John Walsh

Complainant

Respondent

Anonymised Parties

A Complainant

A Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00008621-001

06/12/2016

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

CA-00004494-001

17/05/2016

The Complainant commenced employment with the respondent on 14th June 1984. He was later promoted to the position of Technical Services Manager on 1st January 1999.

He alleges that he was accused for breaching company procedures in the filling out of company timesheets. The Respondent alleges that he falsified timesheets, which resulted in difficulties for the Respondent in relation to its customers. An investigation meeting was carried out by the Respondent, which led to his suspension. A disciplinary hearing took place, which led to his dismissal. He alleges that he was unfairly dismissed without due process and fair procedures. He filed a complaint with the WRC on the 17th May 2016.

The Complainant worked for the company from 14th June 1984 until the 4th of February 2016. He was initially employed as a Pipe Fitter and promoted to an Installation Manager around 1990. He served as a director between 1991 and 1992. In his time with the company, his responsibilities ranged from mechanical installing, design and manufacturing to the supervision of projects.

The last signed contract of employment that the Complainant has is from January 1999 when he was promoted to the position of Technical Service Manager. He was paid on a salary basis. He did not receive overtime payments (for Monday-Friday hours) or travel payments that would normally apply in the construction and construction related sectors. He did not have fixed hours of work but generally started at 9.00am and finished at 5.30 pm. Where extra hours were worked or extra leave was taken, a reconciliation of hours would be conducted throughout the working year.

The company is a medium size mechanical contracting company specialising in the design, manufacture and installation of piped gas equipment for the medical, laboratory, computer, pharmaceutical and electronic Industries. It was established in 1977 and employs an average of ten people.

On the 6th of January 2016, the company conducted an investigation meeting involving Ms. CS (the company's Managing Director) and the Complainant.

On the 8th of January 2016, the company conducted a second investigation meeting involving Ms. CS, Mr. LS (the company's Chief Executive Officer), Ms. CT (the company's Office Manager and Note taker) and the Complainant.

On the 8th of January 2016 Ms. S suspended the claimant pending further investigations arising from comments and discussion at the meeting of the 6th of January 2016.

On the 11th January 2016 Unite the Union (the union) wrote to Ms. S on behalf of the Complainant setting out concerns about the company's approach in the investigation process and requesting to be copied in on any further correspondence that may be sent to the Complainant.

The company did not respond to the letter from the Union of the 11th of January 2016: but confirmed receipt of same in an email to the Union and in a correspondence to the Complainant on the 13th of January 2016.

Mr. S wrote to the claimant on the 20th of January 2016 scheduling a disciplinary hearing and setting out the charge against him.

''Alleged breach of company procedure, namely it is alleged that on numerous dates time sheet records were falsified".

On the 29th of January 2016, a disciplinary hearing took place on the company premises involving the claimant, Mr. LS Ms. CT, (Note taker) and Mr. TF (Regional Officer of the Union).

On the 1st February 2016 Mr. F wrote to the company reiterating the concerns as expressed at the disciplinary hearing on the 29th of January 2016.

On the 4th of February 2016, in correspondence from Mr. S, the claimant was dismissed from his employment.

On the 8th February 2016, the union wrote to the company setting out the grounds of the claimant's appeal under the following headings:

·        Breach of procedure/hours of work

·        Tracking Device

·        Fair Procedures

·        Duty of Care  

On the 23rd of February 2016, the company supplied confirmation of who would conduct the appeal and included the company's notes of the investigation meetings of the 6th and the 8th January and the disciplinary meeting on the 29th January 2016.

Mr. PM of AB Safety Training was appointed by the company to conduct the appeal into the Complaint's dismissal.

The first stage of the appeal was conducted on the 21st March 2016 on the company premises. The Complaint, Mr. M, Mr. F (Unite) and Ms. CT (MIPS Office Manager and Note taker) attended the meeting.

At the meeting of the 21st March Mr. M provided a number of written questions: as the claimant answered the questions, he wrote the answers under the questions.

On the 6th April 2016 Mr. M issued the claimant correspondence and further documents that had arisen from the meeting of 21st March 2016 including his notes from that meeting.

The second stage of the appeal meeting with Mr. M took place on the 18th April in the Premier Inn, Swords, Co Dublin.

On the 26th April 2016 Mr. M issued his findings; he upheld the employer's decision to dismiss the Complainant.

The Complainant's cases were referred to the Workplace Relations Commission (WRC) in May 2016 under the Unfair Dismissals Act 1977 and in December 2016 under the Minimum Notice and Terms of Employment Act 1973.

Day 1 of the cases was heard on the 13th December 2016 in the Ardboyne Hotel, Navan, Co Meath at 12.00 noon.

Day 2 of the hearing is scheduled to be heard on the 28th of March 2017 in the Ardboyne Hotel, Navan, Co Meath at 12.00 noon.

Contract of Employment and Handbook

In 2013 the company sought to introduce new contracts of employment and a new handbook. The union engaged in negotiations with the company on these matters on behalf of its members employed with the company, including the Complainant. There was no agreement reached concerning the proposed changes. This engagement is detailed in a number of correspondences between parties from the 28th June 2013 to the 20th March 2014.

For the purpose of these proceedings the key point that arises from the engagement referenced at 2.1. above is whether or not the company is entitled to rely on their proposed changes to the Complainant's contract of employment and the company handbook either through clear agreement or acquiescence: The Complainant submits that this not the case and that the proposed changes were bound up in collective engagement with the union that never reached agreement. The Complainant further submits that two rounds of engagement between the union and the company are referenced and overlapped by the company to create confusion for the lenses of a third party for two clear reasons: (1) to give the impression that the Complainant's contract of employment was changed to allow the company install a tracking device despite the clear understanding of the claimant that this would not happen (2) to give the impression that the change of practice in filing in Expense Sheets to filling in Expense and Time Sheets was understood and agreed. This requires the examination of these episodes.

Point (1) of 2.2- the Contract and the Handbook

28th February 2013 – 11th July 2013

On the 28th of February 2013 company wrote to all union members concerning the need to "comply with new Employment Directives" and advising that it is "essential for us to re-issue your new Employments contracts and provide Employee Handbook''. (Appendix 25 - See page 179 for example letter)

The union wrote seeking a meeting about proposed contracts and handbook. A meeting took place on the 19th of June 2013. The details of what was discussed are set out in correspondence from the company and the union on the 28th of June 2013 and the 11th July 2013 respectively. (Appendix 25- Page 174 -182)

Between the meeting of the 19th of June 2013, involving a Regional Officer of the Union (Mr. TF) and the letter from him on the 11th of July 2013 a meeting took place involving the company's Chief Executive Officer, Mr. LS and two Unite reps (Mr. D OR and Mr. LF) on behalf of the union membership within the company. The meeting was designed to discuss and try to advance any issues that the workforce had with the proposed contracts and handbook. The meeting was ended abruptly by Mr. S who physically tore up his copy of the proposed contract and dismissed any proposals.

The union wrote to the company on the 11th of July 2013 recording how events had unfolded at the meeting explained at 2.5. The company never rejected the union version of events. At that juncture, the union and its members reasonably took the view that the 2013 proposed contracts and handbook had no standing.

27th February 2014 -23rd August 2016

On the 27th of February 2014, the company issued all union members a memo concerning unilateral changes to their contracts of employment and changes to the law that, in the HR Manger's view (Mr. TS - later to become the Managing Director), would affect union members' daily work. This memo also advised that for all "other items, please refer to your Employee Handbook”. This was the same handbook that Mr. S dismissed seven months earlier. (Appendix 25- Page 184).

"You then go on to advise that for all other items, please refer to the Employee Handbook. Amendments to the employee handbook featured in the company's ' previous efforts to unilaterally change our member’s contracts of employment. At the time, no agreement was reached on proposed amendments due to the company terminating the discussions and as such the current Employee Handbook has no standing with Unite members."

The company responded on the 20th of March 2014 to the union's letter of the 7th of March 2014 in a nine-page letter that was, in the main, extracts copied and pasted from various advice websites in an attempt to justify the elements in the memo of the 27th of February 2014. This letter, under the heading "Source: Sample Contract of Employment" advises that "A company vehicle is supplied by the Company and may with permission be used for private use. The vehicle is fitted with satellite tracking system for security of vehicle and records all activity". The company have sought to rely on this letter and this clause as their steps in advising the claimant of the introduction of satellite tracking system to company vehicles in general and to his specifically. They argued that this clause should have been brought to the claimant's attention by his union.

The Complainant and the union submit that this clause is by way of example rather than instruction and that moreover, the union had reflected its members’ views, including the claimant's, in its letter of the 7th of March and that the language in the company letter of the 20th of March is different form the language in their own proposed contract and proposed handbook. In the proposed contract and proposed handbook of 2013 the company references vehicle tracking as follows: "The Company reserves the right to monitor or remotely track company vehicles at all times". The complainant submits that this is illustrative of the company's attempts to produce various documents (nine-page letter of March 2014 draft, contract of employment and a twenty-eight-page handbook of 2013) and argue at a later stage that an agreed and or understood change had taken place.

The episode of the proposed employed handbook continued into 2016 when the company sought to implement and seek agreement for an increased employee handbook.

On the 3rd of June 2016, the union wrote to the company again advising of the lack of standing of the company handbook among its members. The matter ultimately resulted in a facilitation hearing at the Workplace Relation Commission (WRC), where it was agreed that the company would furnish the union with a new and edited version of the employee handbook for consideration. The company have not furnished the union with the new draft to date as recommended by the WRC.

A symphonise of the above events are also contained in a letter from the union of the 18th of May 2016.

In summary, regarding the contract and handbook, the claimant submits that despite the company's attempts to create confusion it is not the case that the proposed contract of employment or the proposed draft employee handbook were agreed by the claimant, either through clear agreement or acquiescence. It is important to note that the only signed contact that the company have produced is the Complainant’s from 1999.

The Complainant submits that the introduction of the Expense and Time Sheets as opposed to Expense Sheets was introduced by the company at some stage in the period between early 2013 and 2015. He submits that he didn't notice the change until late 2015. He submits that he had always filled in his expense sheets retrospectivity using his diary as a reference. He further submits that any correspondence regarding proposed change to contractual terms or work practices, including the company memo of the 27th of February 2014, were subject to agreement being achieved with the union on his behalf.

In addition to operating on the basis that any proposed change to contractual terms or work practices would be dealt by the union, the Complainant had a number of periods of absences from the workplace while these issues were under discussion between the company and the union, the company and the local reps. The period of absences were as follows:

·        January 2013 - April 2013 - 1st Hip Operation

·        March 2014 - July 2014 -2nd Hip Operation

·        June 2014 - August 2014 - Bereavement Leave

It is also important to note that arising from the absence of fixed hours of the claimant over the years the parties would engage in a reconciliation of hours of hours worked over a given period of time to establish if hours are owed to either party. We return to this point in more detail below. 

Vehicle Tracking Devices

The use of tracking devices on company vehicles has caused much contention within the company. Two senior and long serving members of staff and union members have specific clauses in their contacts of employment advising that their vehicles would not have tracking devices in them. The Complainant submits that he was more senior than these two individuals and received commitments from a company director in the past that his vehicle would not be fitted with a tracking device.

The company relies on the proposed 2013 contracts of employment and Employee Handbook and their letter to the union of the 20th of March 2013 as evidence that the claimant should have understood and been aware that the company vehicle he drove was fitted with a tracking device. The Complainant and the union reject the company's position.

It has been adduced in evidence from Ms. S at the hearing of the 13th of December 2016 that at no stage did she or any other representatives of the company sit down and explain the installation of the tracking device in the vehicle he was driving with the Complainant upon his return to work in August 2014. The historical expense sheets were now to be considered as expense and time recording sheets. It is submitted on behalf of the claimant that this would be the least a reasonable employer should have done in the circumstances.

The case of Foran v. Galen Ltd, Craigavon UD1894/2010 is similar to the instant case in that the employer installed a tracking device in a car used by the Complainant for a number of weeks. The data contained in the report on the movements of the claimant's car did not correspond with the claimant's diary entries for the weeks in question. The complainant was invited to a formal disciplinary meeting where he was informed that his employer no longer had the required trust in him as an employee and the employer had evidence of breach of contract and fraud. The employer stated that the failure to inform the employees of the surveillance was justified as to do so would have changed their behaviour. The EAT stated that the employer's decision not to inform staff of its covert monitoring policy could be regarded as a "breach of trust" by the employer. The EAT further noted that evidence presented based on the surveillance fell short of being the best available and the employer failed to provide the Complainant with all of the information used against him. The claimant was awarded €40,000 in compensation for unfair dismissal.

The investigation process 

As advised above two investigations meeting took place (6th & 8th of January 2016), the first involved Ms. S and the Complainant. The company have submitted that the investigation was initiated on foot of a request by the Complainant in December for an analysis of his hours; this is rejected by the Complainant. The Complainant submits that it was Ms. S that raised the idea of a look back of hours worked. He submits that she raised this on a number of occasions after his return to work in August 2015. The claimant submits that this wasn't new, as over the years he and the company would engage in a reconciliation of hours worked over a given period of time to establish if the he was in the 'red' or the ‘black' regarding hours.

Ms. S presented a significant amount of documentation at the meeting of the 6th January in support of her contention that the claimant had falsified company records. {Spread sheet of vehicle data tracker, toll receipts, expense forms etc.) Two days later, on the 8th January, the second leg of the investigation meeting took place involving the claimant meeting with Ms. CS, Mr. LS (the company's Chief Executive Officer), Ms. CT (the company's Office Manager and Note taker).

The unfairness of the investigation process was set out in a correspondence by the union on the 11th January 2016 at:

That an initial investigation meeting has taken place (conducted by you on a one to one basis), where our member was not given the opportunity to consider the concerns put to him or the opportunity to have a representative with him.

That having established and accepted that on many of the occasions where Mr. D seemed to be in close proximity to his home at an early stage in the evening that he was visiting the grave of his recently deceased wife, the company proceeded with a second meeting involving three company representatives and Mr. D.

That Mr. D was not given the opportunity to have a representative with him at the second meeting.

Confirmation that the company installed a tracking device on the vehicle Mr. D was driving without his knowledge.

Inappropriate commentary from Mr. LS concerning Mr. D's further employment with the company and reference to his late wife; ‘'you would be better of resigning” and “L would be disappointed”.

It is submitted on behalf of the Complainant that the company's approach at the investigation stage was unfair on a number of further grounds:

1st Investigation meeting 6th January 2016

·        The first meeting took place over three/ four hours.

·        In the company’s notes of the meeting Ms. S advised that she had already asked Mr. MF (Director) and Mr. LS (CEO) if there was agreement in place regarding the claimant's claim that he had an agreement that no tracking device would be put in his vehicle. It is submitted on behalf of the claimant that either Ms. S had discussed the case with Mr. F and Mr. S to counter any explanation offered by the Complainant at the investigation stage, which would be inappropriate given Mr. S's later involvement and at the very least an illustration of subjective bias by Ms. S before the process had begun or the process had begun in advance of the meeting with the claimant on the 6th.

·        The company notes of the 6th and evidence form Ms. S from the hearing of December 2016 advise that the Complainant had got emotional on number of occasion, particularly when the passing of his wife came up. It is submitted on behalf of the Complainant that a reasonable employer would terminate such a meeting and only reschedule after setting out in writing the possible ramification arising from the process.

2nd Investigation meeting 8th January 2016

·        Notice of the second stage of the investigation was given by text message on the 7th of January.

·        There were three representatives on behalf of the company while the claimant was alone.

·        The company CEO (Mr. LS) suspended the claimant at the onset of the meeting.

·        The company CEO also engaged in inappropriate commentary at the start of the meeting concerning the claimant's further employment with the company when he referenced the claimant's late wife, as referenced in the union letter of the 11th January. At no stage in correspondence or through oral testimony, has the company rejected the Complainant's version of events regarding Mr. S's comments.

It is submitted that the approach by the company is outside what could be considered fair procedures at investigation stage. The case of Collier v. Pepsico International Food & Beverages Limited [UD1672/2009] concerned an employee who had been dismissed following the discovery of a serious stock discrepancy. The Tribunal found that the employer had not acted as a reasonable employer would have acted in the circumstances because the employee had not been given copies of the stock losses or the opportunity to review those figures and the basis on which they were calculated. The employee did not receive sufficient prior notification of the investigatory meeting to enable him to prepare properly for it. The employer was also held to have breached fair procedures when it allowed one particular representative to take part in both the investigatory and disciplinary meetings and also be consulted at the appeals stage.

In the case of Didenka v. Bradshaw T/A The Station House Bar and Grill UD1299/2010, the EAT stated that "to constitute full and fair investigation, the alleged wrongdoer must also be interviewed. Fair procedures require the allegation be put to the claimant and he be given an opportunity to respond to the allegation." The EAT upheld the claimant's claim for unfair dismissal in circumstances where he had not been given any opportunity to improve his conduct prior to being dismissed.

The Disciplinary Process

The disciplinary hearing took place on the 29th January 2016 on the company premises involving the claimant, Mr. LS (CEO) Ms. CT (Note taker) and Mr. TF (Unite). It is submitted on behalf of the Complainant that the company's approach at the disciplinary hearing was unfair on a number of grounds:

·        The hearing was conducted by Mr. LS (CEO), despite his involvement in the investigation process.

·        Ms. CS (Managing Director) was involved in the disciplinary hearing despite her role in the investigation process.

·        There was ongoing discussion between Mr. S and Ms. S regarding the disciplinary process as advised in her evidence on the 131h of December 2016.

·        Mr. S advised that the appeal of his decision would be up to him in the recorded exchange with the union official (Mr. F), as follows:

TF- Have you a mechanism within your disputes procedure for an appeal process for Mr. D because presumably a decision is going to be made now so have you a mechanism for an appeal of that decision

LS- There is no mechanism for an appeal - I am the CEO of the company

TF- No appeal

LS- I'm not saying there is no right of appeal because you do have the right to appeal my decision to a Rights Commissioner

TF- We have the right to do loads of things, we have a right to engage in

collective action against you and your company - we have right to do a lot of things - I'm asking you does your disputes procedure provide for an appeal

LS- You can make an appeal but it has to come to me

TF- So the appeal is to the decision maker

LS- Yes

TF -So you are going to be the person to make the decision in terms of should Mr. D get a disciplinary sanction - is that fair to say

LS- That's true

TF- Ok and the person to appeal/hat decision is also you?

LS- Because I am the Chief Executive (Appendix 31 A- recording of disciplinary meeting 29th January 2016)

On the 1st February 2016 Mr. F wrote to the company reiterating the concerns as expressed at the disciplinary hearing on the 29th of January 2016. In his concluding comments Mr. F advised: 

" It is apparent that Mr. D spent time during the working week visiting his wife's grave; he accepted this at the investigation stage as well at the disciplinary stage. However, given the flexibility attached to his hours of work, permission given by Ms. S, there is no basis for any disciplinary sanction to emanate from this process. Moreover, given the circumstances this drawn-out process is tantamount to harassment of Mr. D. It is incredible that an employer could feel justified in secretly tracking a worker, with almost thirty-two years' service, to his wife's grave within months of her death. With this in mind, and in the interest of basic decency, I would ask that the matter is brought to a close as soon as possible, that no disciplinary sanction would be issued and that an apology would be issued to Mr. D, that the company would engage with Mr. D and his representatives where necessary with a view to assisting him in his return to work following his unnecessary suspension and this painful process".  

It is submitted that the approach by the company is outside what could be considered fair procedures at the disciplinary stage. A central tenant of fair procedures is that the person sitting in judgement should be free from bias. It is submitted that Mr. S was not and could not be free from bias. 

The case of Leigh v. SpeedKing Couriers Ltd t/a Fastway Couriers (Midlands) UD28/2014 dealt with the issue of overlap between the investigation and disciplinary process. The EAT expressed concern at the dual roles of management in the investigation and disciplinary process and noted a clear failure by the respondent to maintain a desirable separation between them. 

The appeal process 

As advised above the appeal process was conducted by Mr. PM of AB Safety Training. The first stage of the appeal was conducted on the 21st of March 2016 and the second 18th April 2016. On the 28th April 2016 Mr. M issued his findings; he upheld the employer's decision to dismiss the claimant. 

Despite being asked to conduct an appeal of the charge against the Complainant, namely "Alleged breach of company procedure, namely it is alleged that on numerous dates time sheet records were falsified", Mr. M also found that the Complainant had:

·        Repeatedly & systematically falsified your records

·        Gained financially from your actions

·        Not worked to commonly acceptable standards of behaviour

·        Disregarded Management instructions to read documents

·        Put yourself in a position of ignorance which lead to your Termination of Employment. 

It is submitted that Mr. M went well beyond the terms of reference of the apply process and consequently rendered his outcome unfair. 

It is respectfully submitted that Mr. M's role as the appeal officer in the Complainant's case was entirely inappropriate and unfair arising from his economic relationship with the company as contractor providing training. As an individual economically dependent on the company it would be impossible to establish the absence of a subjective bias. In the case of Connolly v. McConnell [1983] IR 172, the Supreme Court stated that '"when a person holds a full-time pensionable office from which he may be removed, and thus be deprived of his means of livelihood and of his pension rights, the domestic tribunal or body having the power to remove him are exercising quasi-judicial functions. Therefore, they may not remove him without first according to him natural justice. He must be given the reasons for his proposed dismissal and an adequate opportunity of making his defence to the allegations made against him -audi alteram partem. The members of the Tribunal must be impartial and not be judges in their own cause-nemo iudex in causa sua. They must ensure that the proceedings are conducted fairly." 

It is respectfully submitted that Mr. M did not have the experience to deal with the appeal and was not an impartial party in the decision-making process. In evidence at the first hearing he advised that he had never dealt with an appeal hearing and he had little experience in such matters. 

Proportionately 

It is accepted by the Complainant and clear from the notes of the disciplinary meeting that there were a number of occasions that the expense sheets placed him at a different location than where he was. The Complainant submits that the flexibility attached to his role and the clear position put to him on his return to his work after his bereavement leave from Ms. S, "do the hours you can - no pressure" allowed him significant flexibility on a day to day basis. He also completed his expenses (as opposed to time and expense sheets) sheets as he had always done; weeks or sometimes months later by reference to his diary. The Complainant submits that he was getting on with the job, dealing with his bereavement and trying to look after his family at a difficult time, in the full knowledge that he may owe hours to the company and that this would need to be reconciled at a certain point in time. 

Without prejudice to the arguments advanced above concerning unfair procedures and the Complainant's submission that he did not falsify company records and was working within the understood parameters, it is submitted that even if the claimant had falsified company records, the circumstances attached to the triggering of the investigation process could not justify a dismissal. The Complainant had just less than 32 years distinguished service with the company. He lost his life partner in very traumatic circumstances in June 2014. He returned to work in in August 2014. In January 2016, the company advised that there were twelve occasions that his whereabouts did not reconcile with their records; four of the occasions were explained and on eight of the occasions it was established that he was at his wife's grave. 

In such circumstances a reasonable employer would be expected to exercises their duty of care to the employee; advise or provide extra supports, including bereavement counselling. If a disciplinary process then became necessary, corrective action could have been taken. If it proved absolutely necessary to implement a disciplinary sanction, consideration should have turned to something short of dismissal in the first instance.

The company did none of this. 

The Complainant denies that any offers of alternative working arrangements were offered, as advised by the employer. He further submits that letter of June 2014 regarding flexible work was only furnished to him at the appeal process. 

The Law 

Section 6(1) of the Unfair Dismissals 1977 Act (the Act) provides that: 

Subject to the provisions of this section, 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 were substantial grounds justifying the dismissal. 

The act provides the presumption that all dismissals are deemed unfair and puts the burden on the employer to establish that the dismissal was fair. Subject to the direction of WRC otherwise, the first hearing saw the completion of the company's oral evidence and the cross examination of same by the claimant's representative. In the first instance it is respectfully submitted that the company has not met the burden of proof from a procedural or proportionate point of view. 

It is necessary to consider the proportionality of the employer' s decision to dismiss an employee in light of the surrounding circumstances. The test for reasonableness was set out by the EAT in Noritake (Ireland) Ltd v. Kenna UD88/1983:

1. Did the employer believe that the employee misconducted himself as alleged. If so,

2. Did the company have reasonable grounds to sustain that belief? If so,

3. Was the penalty of dismissal proportionate to the alleged misconduct?

It is submitted that the company failed to consider the totality of the case, specifically the complainant's recent bereavement. It is further submitted that the decision by the company to dismiss the complainant on foot of covert surveillance and a flawed investigation, disciplinary and appeals process was disproportionate. 

Minimum Notice

Section 4 of the Minimum Notice and Terms of Employment Act 1973 (Minimum Notice Act) provides inter alia: (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks [notice]. The claimant has in excess of fifteen years' service with the company and if his unfair dismissal claim is successful he would be entitled to notice payment of not less than eight weeks.

Section 12 of the Minimum Notice Act as amended by section 41 of the Workplace Relations Act 2015 (WRC Act) provides:

"(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute as to the entitlements of an employer under section 6 may include such directions as the adjudication officer considers appropriate."

Section 41(6) of the WRC Act provides:

"Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of6 months beginning on the date of the contravention to which the complaint relates."

Section 41(8) of the WRC Act provides:

"An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause "

It is submitted on behalf of the Complainant, that his claim under the Minimum Notice Act, was delayed due to "reasonable cause". The Complainant had asked the union to advance his claim under the Minimum Notice Act; implicit in that request is that the claim would be made in good time. The union failed to advance the claim within the required six months provided at 41(6) of the WRC Act, but did advance it within the twelve months allowed under section 41(8) of the WRC Act. The claimant was reasonably entitled to believe that his claim was advanced in good time and we would respectfully request that he be allowed the time extension provided provide at section 41(8) of the WRC Act. 

Losses incurred by the claimant

The following is a “Schedule of Losses” submitted by the complainant:

As explained above the complainant had moved into a supervisor role over the years. In 2013 and 2014 he had both of his hips replaced. He submits that he would not be physically able do the work of an onsite craft worker, despite his qualifications. He submits that he is constrained from getting a supervisory role with other mechanical employers in the absence of a reference form the company. He advises that, notwithstanding the growing construction sector, the mechanical sub-sector is relatively small and tightly- knit.

With the above in mind the complainant immediately sought to retrain himself when he was dismissed. He began training as an ambulance driver and paramedic in 2016, at his own expense. He has received a commitment of work on completion of his training and examination.

He has regained employment from April 2017 and the losses of the complainant are set out in the Schedule attached hereto. 

Summary and Conclusion

On the basis of the forgoing, it is respectfully submitted that the claimant was unfairly dismissed.

It is submitted that the investigation, disciplinary and appeal process were entirely outside what would be expected within the provisions of fair procedures and natural justice.

It is submitted that in the circumstances the claimant is entitled to rely on the time extensions provided from under the WRC Act in respect of his claim under the Minimum Notice Act.

It is submitted that his claim for loses are appropriate and justified in the circumstances.

The Complainant commenced employment with the respondent on 14th June 1984. He was later promoted to the position of Technical Services Manager on 1st January 1999.

The respondent is engaged in the design, manufacture, installation and maintenance of piped gas systems for the Medical, Laboratory, Educational, Pharmaceutical and Electronic Industries. Many of their clients are hospitals, nursing homes, and hospice/palliative facilities

A letter was issued to all employees dated 11th February 2013 enclosing updated contracts and introducing handbooks

In the contact of employment under the heading ‘Vehicle Tracking’ it states;

The company reserves the right to monitor or remotely track company vehicles at all times.

Further, in the employee handbook it states:

Medical and Industrial Pipeline Systems Ltd reserves the right to remotely monitor and track vehicles.

In the letter to the Complainant’s representative, Mr. TF, dated the 13th March 2014, that was copied to all staff it states ‘The vehicle is fitted with a satellite tracking system’.

By letter dated 22nd April 2013 the respondent wrote to the Complainant introducing the new time-sheet and expressing the legal requirement for him to record his hours for Organisation of Working Time Act compliance and requesting him to return the signed contract or if he was unhappy with any of the terms therein to negotiate on same. No response was forthcoming. In the same letter the respondent again requested the Complainant to return his signed contract.

In or about May 2013 Mrs SD approached the Complainant to discuss the contract as he failed to return the signed contact. The Complainant advised that he had not received the documents. Ms. SD re-issued them with the instruction to read the documents as there were policies therein of which he may not have been aware it and if there was anything he was unhappy about to revert.

The document was not returned. Mrs S asked for the document to be returned approximately 2 weeks later and Mr D said he had not yet got around to it.

The respondent met with Mr. F on the 19th of June 2013 on a different matter and the issue of the 2013 contracts was discussed.

In July 2013, the respondent discovered that a number of employees were completing time sheets incorrectly, Mr. S had a conversation with the Complainant about this and an agreement was made that the Complainant would adhere to proper procedure.

In November 2013, the respondent had a conversation with the Complainant and offered him the same terms as discussed with the fitting staff in regard to overtime, Saturday pay, time for time and travel time pay the Complainant declined the offer as he said it would interfere with is taxes and his hours always balanced out. But would let me know if that changed.

By memo dated 27th February 2014 the respondent advised all staff advising of changes in their handbook. The points highlighted in the memo include:

(i)               ‘you are no longer allowed, regardless of what is stipulated in your Contract to use the company vehicle for private use’

(ii)              ‘Time sheets are to filled in on a daily basis and accuracy is vital’

(iii)            ‘Any discrepancy, to your benefit or detriment, within your wages or your expenses payment must be brought to the attention of Management with 1 month of the original claim’ (sic)

The Complainant was on sick leave between 26th March and 17th July 2014. Before the end of his sick leave the Complainant advised that his wife had become very sick.

The respondent wrote the Complainant on 23rd June 2014 offering him the opportunity to change how he worked to give him the time he needed and to let MIPS know if there was anything they could do for him/them. The Complainant was thankful of the gesture but advised that he planned to come back to work as soon as possible. He declined the offer. This offer was dependant on his accurate filing of timesheets

Sadly, the Complainant’s wife passed away.

The Complainant telephoned the respondent to advise that he was ready to return to work, it was explained that the respondent required a Fitness Certificate from an Occupational Health Professional before the Complainant could return him to duty.

The Complainant attended the Meridian Clinic for an assessment and a fit to work certificate was issued.

When the Complainant returned to work the respondent re-issued the offer for him to choose how he worked and just to bill the company for those hours. Again, the Complainant was thankful but declined saying that he felt like he needed structure but was unsure if he wanted to continue working but would give at least 6 months notice if he chose to leave.

In December 2015, the Complainant asked the respondent to check his timesheets because he said that the respondent owed him time.

After this request the respondent reviewed the Complainant’s time sheets and noticed that they did not correspond with his receipts and tolls. The respondent reviewed the tracker on the Complainant’s company vehicle and found that there were inconsistencies.

On or about the 16th of December 2015 Ms SD approached the Complainant and advised that she I didn’t have an answer for him about worked up time because she was having difficulty reconciling his timesheets.

Mrs. S was unable to explain the irregularities and after the Christmas break on the 4th of January 2016 the Complainant was issued with notice of an investigation and issued him with a Request to Attend an Investigation Meeting for that Wednesday (8th January)

The Complainant was afforded the opportunity of having a co-worker present.

An Investigation Meeting was held on 6th January 2016. The Complainant advised that he had received a verbal assurance from the previous Managing Director, Mr. MF that he would not have a tracker on his vehicle and therefore the respondent could not rely on the evidence from the tracker. The respondent refutes this, while two employees were excluded for the obligation to have a tracker on their vehicles, this was agreed in writing with those specific employees, no such agreement was in place for the Complainant. The Complainant advised that he did not accept the terms of his 2013 contact. The meeting was emotional. It was explained to the Complainant that the company invoices customers using a number of different assessment procedures including on the basis of the time sheets submitted by him and, if those time sheets were wrong, the company could be open to repercussions. Ms SD used a large excel spreadsheet to demonstrate the contradictions between what Mr D had claimed as his working day and the locations recorded by tolls, purchase receipts and satellite tracker data. The excel spreadsheet also demonstrates sites that had not been attended despite timesheet records and what appeared to be Mr D’s avoidance of toll booths. The Complainant refused to sign the minutes of the meeting.   These minutes were presented to him on the 8th January at the suspension meeting but agreed on tape that it was a true and accurate account.

By telephone and reconfirmed by text message on the 7th January 2016 the Complainant was invited to ‘the next stage of the procedure’ on 8th January. Mr D had been advised in the phone call of his right to have someone present with him at the meeting.

The Complainant signed a ‘consent to recording’. The decision had been taken to suspend the Complainant on full pay to allow both the proper investigation of the allegations that:

‘you falsely stated the hours you worked on the company time-sheet and signed them as being a true and accurate account of your working week’

Ms SD explained that because the Complainant had raised the possibility that he had been unfit for duty and the company had an obligation to ensure he was capable and competent to carry out his duties and upon certification of fitness to work the Complainant could return to work after the suspension. A letter dated 8th January 2016 was issued confirming the suspension.

On 18th January, the respondent received the Complainant’s fitness to work certificate, which was dated the 12th January 2016

By letter date 20th January the Complainant was invited to a Disciplinary Hearing on 22nd January, on the Complainant’s request this was postponed to 29th January.

The Complainant consented to the meeting being recorded. During the meeting the Complainant’s representative, Mr F stated that ‘there was almost an admission and acceptance from Dave that he possibly was in breach of company procedures’, however Mr F states that there was a ‘lack of company procedure’. He added that the Complainant ‘did not deny anything but rather requested evidence’.

The company identified a number of occasions where the Complainant stated he was at a client’s site however his van was not there. On most of these occasions the Complainant’s van was in the Tallaght region. Also, days where Mr D recorded hours in excess of hours completed.

By letter dated 4th February 2016 the respondent wrote to the Complainant advising that the Complainant’s conduct amounts to gross misconduct and he was summarily dismissed.

The letter outlined the specific incidents discussed during the Disciplinary Hearing including an occasion on 15th June 2015 where the Complainant on his time sheet stated to be at the Laura Lynn Children’s Hospice Centre, his vehicle was tracked driving around Tallaght during those hours however he admitted not being there as stated. Also, an occasion on 3rd September 2015 where the tracker registered the van in the respondent’s factory when the Complainant was supposed to be in Cherrywood, the Complainant’s representative advised that there was no financial gain to the Complainant therefore no gain. Another incident on 27th August when the Complainant was supposed to be in National University of Ireland Maynooth, but his vehicle was tracked travelling around Tallaght, to Dunnes Stores, Aldi and home and attending Tallaght Hospital which was not recorded on his timesheet, the Complainant advised that he was either at the graveyard or picking up his daughter. Private use of company vehicle is not permitted unless you register for Benefit In Kind.

By letter dated 8th February 2016 the Complainant appealed the decision.

By e-mail on the 29th January 2016 Ms. TSD wrote to Mr D and copied Mr F explaining the procedure for appealing any decision that may be made and the requirement for MIPS to engage with a third party to chair said appeal. By letter dated 9th February the Complainant confirmed that a third party would have to be engaged to hear the appeal. By letter dated 15th February the Complainant was given the option as to who heard his appeal.

The appeal hearing was heard on 21st March 2016.

The Complainant consented to the meeting being recorded.

At the hearing the Complainant’s representative stated ‘it has been agreed that of the 12 occasions, 8 of them, he was at his wife’s grave’.

The Appeal hearing was reconvened on 18th April due to new evidence coming to light and due to concerns raised by the Complainant.

At the meeting on 18th April 2016 the Complainant advised that he had not seen the letter dated 24th June 2014 from the respondent offering the Complainant the opportunity to work and be commensurately paid for self-selected hours.

By letter dated 26th April 2016 the results of the rehearing were issued to the Complainant. The letter upheld the dismissal.

LAW

In the case of Sean Purcell v Last Passive Limited t/a Aircoach (UD1223/2014) the Tribunal held that the “respondent company acted reasonably at all times and that substantial grounds existed justifying dismissal, that is, that the appellant’s actions constituted a serious safety risk and were in clear breach of company policies.”

In the case at hand the Complainant failed to perform the job he was meant to do, as he failed to attend client sites to service medical on other critical gas equipment. This meant that this equipment was not being serviced as required and this potentially posed a safety risk to the users of that medical equipment. The Complainant was expected to attend sites to review their progress and quality check the work and bring feedback to the Engineering department as one of its safety and quality measures.

It is submitted that the respondent in his particular case, investigated thoroughly and furnished the Complainant with all information available to them as part of the process. 

In the case of Looney & Co. Ltd. v Looney UD843/1984, (taken from Mary Redmond, Dismissal Law in Ireland) the EAT said that it is their responsibility to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.”

It is therefore submitted that the respondent acted reasonably in the circumstances and we submit given the situation, that the dismissal was fair in accordance with Section 6(4)(b) of the Act.

CA-00004494-001 Unfair Dismissals Act, 1977

Section 6(1) of the Unfair Dismissals 1977 Act (the Act) provides that: 

Subject to the provisions of this section, 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 were substantial grounds justifying the dismissal. 

The onus is clearly on the employer to adhere to the principles of due process, fair procedures and natural justice when carrying out investigation meetings, disciplinary meetings and appeal meetings.

The importance of fair procedures is highlighted, not only by case law, but also by the provisions of Section 6 (7) of the Unfair Dismissals Act, 1977, and further by the code of practice on grievance and disciplinary process (SI No 146 of 2000).

Based on both written and oral evidence given at the hearings, I find as follows:

The Investigation Process

The Respondent carried out investigation meetings on the 6th January 2016 and on the 8th January 2016 into allegations that the Complainant had falsified company records. The meeting of the 1st January 2016 was chaired by Ms. CS (MD).   The meeting on the 8th January 2016 was initially chaired by Mr. LS (CEO) and was later chaired by Ms. CS (MD). The Complainant was suspended on the onset of this meeting.

Disciplinary Process

A Disciplinary meeting took place on the 29th January 2016. This meeting was chaired by Mr. LS (CEO). Mr. LS had already been involved in the investigation process. Ms. CS was also involved in the investigation process. She was also involved in discussions with Mr. LS during the course of the disciplinary hearing.

The case of Leigh v. SpeedKing Couriers Ltd t/a Fastway Couriers (Midlands) UD28/2014 dealt with the issue of overlap between the investigation and disciplinary process. The EAT expressed concern at the dual roles of management in the investigation and disciplinary process and noted a clear failure by the respondent to maintain a desirable separation between them. 

The Appeal Process

Mr. PM carried out the Appeal meetings on the 21st March 2016 and on the 18th April 2016. He issued his findings, confirming his decision to dismiss the Complainant. Mr. PM had an economic relationship with the company, as he was a contractor, who provided safety training to the company. As an individual, economically dependent on the company, it would be impossible to establish the absence of a subjective bias.

I find that the Complainant was not afforded due process and fair procedures in the manner in which the disciplinary and appeal process was carried out. The investors were also involved in the disciplinary process, and that was unfair to the Complainant. The Appeals officer had an economic interest in the company and therefore, he should not have been involved as the Appels Officer. 

CA-00008621-001 Minimum Notice & Terms of Employment Act, 1973

The Complainant filed his complaint with the WRC on the 6th December 2016. The complaint was not filed in line with Section 41(6) of the Workplace Relations Act 2015. The Complainant filed his complaint outside the 6-month time limit as is allowed for under this act. The Complainant argued that he should be allowed an extension of the time limit as is allowed for under Section 41(8) of the Workplace Relations Act 2015. He stated that he understood that his Union Representative had filed his complaint on time. However, the Union Representative failed to do this when he filed the complaint under the Unfair Dismissals Act 1977. The Union Representative stated that this was an oversight on his part.

I accept that the Complainant was not at fault, as the Union Representative failed to file the complaint on time. Therefore, I will allow an extension of the time limit in relation to this particular complaint.

Workplace Relations Commission Adjudication Officer: John Walsh

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