Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Warehousing Company

Representatives

The Complainant attended the Hearing in person and was not represented

The Respondent attended the Hearing in person and was not represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00008991-001

06/01/2017

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

CA-00008991-002

06/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008991-003

06/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00008991-004

06/01/2017

The Complainant was employed by the Respondent as a Warehouse Operative from 17 November, 2014 until 29 December, 2016 when he was summarily dismissed for his employment. The Complainant claims that he was unfairly dismissed from his employment within the meaning of Section 6 of the Unfair Dismissals Acts. The Respondent disputes the claim of unfair dismissal and claims that the Complainant’s employment was terminated by reason of gross misconduct.

The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by the Respondent.

The Complainant claims that the Respondent has failed to provide him with a written statement of his terms and conditions of employment contrary to the Terms of Employment (Information) Act 1994. The Complainant also claims that that the Respondent has contravened the provisions of Sections 19 and 23 of the Organisation of Working Time Act 1997 in relation to his annual leave entitlements.

CA-00008991-001 – Complaint under the Unfair Dismissals Acts

The Complainant was employed by the Respondent as a Warehouse Operative on 17 November, 2014. The Complainant’s duties involved “picking” and selecting items and packaging these goods on pallets for distribution to customers. The Complainant claims that he had been promoted 3 or 4 months prior to his dismissal which resulted in him carrying out scanning duties in addition to his existing role.

On 28 December, 2016, the Complainant was attempting to place a number of heavy boxes which contained trampolines on a pallet for packaging and required assistance from his colleagues to lift the boxes. The Complainant claims that as he was required to “pick” at least 100 boxes per hour he was very selective in relation to whom he asked for assistance. He did not want to ask any colleagues that were already working as disturbing them would affect their hourly rate.

The Complainant claims that the warehouse doors were partially open indicating that a number of his colleagues were outside. The Complainant was aware that these colleagues were outside on an unauthorised smoking break so he went outside and asked one of them for assistance to lift the boxes. One colleague followed the Complainant back into the warehouse to assist him with this task after finishing his cigarette.

The Complainant claims that approx. 5 minutes later the Warehouse Manager approached him at his workstation and indicated that he had seen him coming back into the warehouse from outside. The Warehouse Manager asked the Complainant who had opened the doors and who was outside. The Complainant claims that he answered truthfully and indicated that he did not know who had opened the doors. The Complainant also replied that he wasn’t sure who was outside as there were a lot of people around that particular day as they were very busy.

The Warehouse Manager asked a further two or three times who was outside but the Complainant answered that he was not in a position to confirm to him who was outside. The Warehouse Manager then indicated that he could find out anyway if he checked the CCTV footage. The Complainant responded that he had no reason to ask him for this information if it was available on the camera. The Warehouse Manager instructed the Complainant to finish the order, put the pallet on the wrap and wait for him there.

However, the Warehouse Manager followed the Complainant to a different shed where the wrapping took place only minutes later and instructed him to go to the office. On the way to the office the Warehouse Manager again asked the Complainant who had been outside the warehouse. The Complainant explained that he could not tell him. The Warehouse Manager informed the Complainant that he had lied five times and indicated that he was not required anymore, that someone else could do his job and that he should go home. The Complainant went to the office and clocked out and went home as instructed by the Warehouse Manager.

The Complainant claims that he did not feel it was incumbent on him to police or supervise colleagues when they went outside on breaks, authorised or otherwise. The Complainant claims that he was put in an untenable position of having to “blow the whistle” on his colleagues whom he would have to continue to work with in the future. The Complainant claims that one of his colleagues who had been outside the warehouse smoking when he had sought assistance to lift the boxes was also questioned by the Warehouse Manager in relation to the incident. The Complainant claims that this colleague admitted that he was outside smoking but similarly would not divulge to the Warehouse Manager the names of the other colleagues who had also been outside. The Complainant claims that this colleague was not subjected to any disciplinary sanction by the Respondent which was in total contrast to the action which had been taken against him in relation to the incident.

The Complainant claims that he was summarily dismissed from his employment without any proper investigation or adherence to fair procedures.

In cross examination, the Complainant denied the Respondent’s contention that he was caught smoking on the premises on 28 December, 2016 and that this was the reason for his dismissal.

CA-00008991-002 – Complaint under the Minimum Notice and Terms of Employment Act 1973

The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by the Respondent.

CA-00008991-003 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that that the Respondent has contravened the provisions of Sections 19 and 23 of the Organisation of Working Time Act 1997 in relation to his annual leave entitlements. The Complainant claims that he was only paid for 15 days’ annual leave for each of the years that he was employed by the Respondent. The Complainant contends that he was not paid his outstanding entitlements to annual leave upon the cessor of his employment on 28 December, 2016.

CA-00008991-004 – Complaint under the Terms of Employment (Information) Act, 1994

The Complainant claims that the Respondent failed to provide him with a written statement of his terms and conditions of employment at any point during his period of employment contrary to Section 3 of the Terms of Employment (Information) Act 1994.

CA-00008991-001 – Complaint under the Unfair Dismissals Acts

The Respondent operates a family run warehousing business and provides storage, logistics and distribution services for its customers. The company’s business includes the provision of warehousing facilities for a large importer of toys and during the busiest period of the year it employs approx. 130 workers.

The vast majority of the products stored in the Respondent’s warehouse are packaged in cardboard boxes and as a result the adherence by staff to strict fire prevention procedures and policies is of paramount importance. The Respondent stated that its insurance providers also require adherence to very stringent conditions in relation to fire prevention measures. As an example, the Respondent stated that it was required in recent years to install a sprinkler system in the warehouse at a cost of €2.5 million to comply with fire safety regulations.

The Respondent stated that all staff members are provided with extensive training on fire prevention measures in the workplace and there is a strict policy in place which prohibits staff members from smoking within the confines of the warehouse. The Respondent claims that this anti-smoking policy is brought to the attention of all staff members and there are signs situated throughout the warehouse indicating that smoking is strictly prohibited on the premises. The Respondent stated that any breaches of the anti-smoking policy by staff is considered to amount to gross misconduct and staff members are subject to summary dismissal if found guilty of breaching this policy. The Respondent stated that staff members are allowed to smoke outside of the warehouse and that on occasion staff will leave the premises to go outside and smoke during break periods.

The Respondent stated that the Complainant was employed as a “picker” in November, 2014 and was made fully aware of the strict anti-smoking policy in the workplace following the commencement of his employment. The Complainant was caught smoking on the premises by the Warehouse Manager on 28 December, 2016 and was summarily dismissed immediately as the offence constituted a breach of the strict anti-smoking procedures and amounted to gross misconduct. The Warehouse Manager informed the Complainant of his dismissal and requested him to leave the premises immediately after the incident occurred on this date.

The Respondent stated that this was the first occasion in its 24 years of existence that a staff member was dismissed for a breach of the anti-smoking policy on the premises.

The Respondent denies that the Complainant was unfairly dismissed from his employment and contends that the dismissal arose as a consequence of his actions which constitute gross misconduct in accordance with its internal disciplinary procedures.

CA-00008991-002 – Complaint under the Minimum Notice and Terms of Employment Act 1973

The respondent claims that the Complainant was summarily dismissed for an act of gross misconduct, and therefore, was not entitled to statutory notice in accordance with the provisions of Section 8 of the Minimum Notice and Terms of Employment Act 1973.

CA-00008991-003 – Complaint under the Organisation of Working Time Act, 1997

The Respondent denies the Complainant’s claim that it has contravened the provisions of Sections 19 and/or 23 of the Organisation of Working Time Act 1997 in relation to his annual leave entitlements. The Respondent submitted that the Complainant received all of his statutory annual leave entitlements in respect of his period of employment.

CA-00008991-004 – Complaint under the Terms of Employment (Information) Act, 1994

The Respondent submitted that it provides written contracts of employment to all of its employees and contends that the Complainant was provided with same during his period of employment.

CA-00008991-001 – Complaint under the Unfair Dismissals Acts

The Relevant Law

Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides:

“(1) 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.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

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

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The fact of dismissal was not in dispute in this case. However, the circumstances and the reason which resulted in this dismissal were very much in dispute between the parties. There was a complete conflict in the evidence in relation to the events which transpired on the material date in question and which ultimately resulted in the Complainant’s summary dismissal. The Respondent claims that the Complainant was summarily dismissed for an act of gross misconduct after he was caught smoking in the warehouse by the Warehouse Manager on the material date in question. The Complainant denies that he was smoking, either in the warehouse or at all, on the date in question or that the reason for his dismissal was related to this alleged act. The Complainant claims that he was dismissed by the Warehouse Manager after he refused to identify a number of his work colleagues who had been smoking outside of the warehouse on the date in question.

It is well settled that where there is a conflict of evidence regarding a pertinent event leading to dismissal that it is not a matter for me, as an Adjudication Officer, to decide on the issue of guilt or innocence of the Complainant. In the case of Poulter -v- B & Q (Ireland) Ltd[1], the Employment Appeals Tribunal explained its role in conduct dismissals in the following terms: “Thus, the Tribunal neither seeks to establish nor does it establish that the employee is guilty or innocent of the alleged wrongdoing. And further, the Tribunal must not substitute its decision for that of the employer but must ask itself if a reasonable employer in the similar circumstances to those facing the respondent would have dismissed the employee. The reasonable employer test is satisfied if the employer had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and the sanction of dismissal must not be disproportionate (Noritake (Irl.) Ltd v Kenna (UD 88/1983) and Martin v Audio Video Services Centre Ltd (UD617/1991).”

The Respondent was represented at the oral hearing by its Managing Director who did not witness the alleged incident involving the Complainant smoking in the warehouse which it contends was the reason for his summary dismissal. Neither was the Managing Director involved in the decision-making process to summarily dismiss the Complainant on the material date in question. The Respondent’s Warehouse Manager, who allegedly witnessed this incident and summarily dismissed the Complainant, did not attend the oral hearing to adduce evidence in relation to the matter. It was confirmed by the Respondent at the oral hearing that the reason for the Warehouse Manager’s non-attendance was due to the fact that he was carrying out a stock taking exercise on this date.

The Respondent failed to adduce any direct evidence to contradict the version of events which the Complainant contends took place on the material date in question and which gave rise to his dismissal. I have found the Complainant to a credible witness and, on the balance of probabilities, I find his version to be more compelling in relation to the circumstances and events which resulted in his dismissal on the material date in question. In coming to this conclusion, I have taken account of the uncontested evidence that the Complainant had an otherwise unblemished disciplinary record prior to the alleged incident which gave rise to his dismissal and that he was fully aware of the Respondent’s policy which prohibited smoking in the warehouse.

The Labour Court held in the case of McStone Systems Limited t/a Stone Systems -v- Wieslaw Tyka[2] that: “The Court is of the view that a failure to properly and fully investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair and sufficient opportunity to advance a defence will generally take the decision to dismiss outside the range of reasonable responses which will probably render any resulting dismissal unfair.”

It was not in dispute that the Complainant was summarily dismissed without any investigation or enquiry into the alleged gross misconduct having been carried out. The Respondent came to the conclusion that the Complainant was guilty of a serious offence without giving him an opportunity to defend himself and/or respond to the allegations. The Complainant was not afforded the right to any representation and was given no right to appeal.

Having regard to the foregoing, I find that the actions of the Respondent in terms of the sanction of summary dismissal were not within the range of reasonable responses open to it in the circumstances. I also find that the manner in which the complainant’s dismissal was effected was totally lacking in procedural fairness and contrary to the principles of natural justice.

Having regard to the forgoing, I find that the Complainant’s dismissal was both substantively and procedurally unfair in the circumstances.

CA-00008991-002 – Complaint under the Minimum Notice and Terms of Employment Act

In respect of the complaint made pursuant to the Minimum Notice and Terms of Employment Act, I find that the complaint is well-founded. I find that the Respondent has not demonstrated that the Complainant committed an act of gross misconduct to disentitle him to statutory notice. The Complainant was employed by the respondent for just over 2 years, and it follows that he is entitled to the statutory notice period of two weeks.

CA-00008991-003 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that that the Respondent has contravened the provisions of Sections 19 and 23 of the Organisation of Working Time Act 1997 in relation to his annual leave entitlements. The Complainant claims that he was only paid for 15 days’ annual leave for each of the years that he was employed by the Respondent. The Complainant contends that he was not paid his outstanding entitlements to annual leave upon the cessor of his employment on 28 December, 2016.

The Complainant’s employment was terminated on 28 December, 2016 and the instant complaint was referred to the WRC on 7 January, 2017. By application of the time limits provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period covered by this claim is confined to the six-month period from 8 July, 2016 to 7 January, 2017.

The relevant leave year is defined by Section 2(1) of the Act which provides that a leave year is a year commencing on 1 April. Therefore, any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leave on the cessation of his employment accrued within the period, i.e. from 1 April, 2016 to 28 December, 2016. In so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of annual leave taken on dates prior to those dates, it is statute-barred and, to that extent, it is not cognisable for the purposes of my inquiry in this matter.

Section 19 of the Act provides that an employee is entitled to a maximum of 20 days paid leave in a leave year. As the Complainant worked approx. nine months in that leave year, he accrued a statutory entitlement of 15 days’ annual leave. As the Complainant accepted that he was paid by Respondent in respect of 15 days’ annual leave during this period, I am satisfied that he received his statutory annual leave entitlements in respect of this period. Accordingly, I find that the Respondent did not contravene the provisions of Section 23 of the Act.

CA-00008991-004 – Complaint under the Terms of Employment (Information) Act, 1994

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.

The Complainant claims that the Respondent failed to provide him with a written statement of his terms and conditions of employment at any point during his period of employment contrary to Section 3 of the Terms of Employment (Information) Act 1994. The Respondent disputed the claim and submitted that it provides written contracts of employment to all of its employees. The Respondent indicated that it did not bring a copy of the Complainant’s written contract of employment to the hearing and sought leave to submit the said document post hearing. The Respondent was afforded a period of seven days following the hearing to submit a copy of this document but subsequently confirmed in writing to the WRC that it had been unable to locate a copy of the Complainant’s written contract of employment.

Having regard to the evidence adduced, and on the balance of probabilities, I find the Complainant’s evidence to be more compelling in relation to this matter. In the circumstances, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

CA-00008991-001 – Complaint under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts.

In accordance with the provisions of Section 7 of the Act, I consider that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that the Complainant was earning a gross weekly wage of €370.50 per week at the material time of his dismissal.

The Complainant gave evidence that he has been available for work and has been actively seeking to obtain alternative employment following his dismissal. The Complainant gave evidence that he obtained alternative employment during the period from 28 February, 2017 to 1 November, 2017 in respect of which he received remuneration in the amount of €700 gross per week. The Complainant has been unable to secure alternative employment since 1 November, 2017. Having regard to the foregoing, I deem that an award of €5,000 (five thousand euro) to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from his dismissal. In accordance with the provisions of Section 7 of the Unfair Dismissals Acts, I award the Complainant the sum of €5,000 by way of compensation under the said legislation.  

CA-00008991-002 – Complaint under the Minimum Notice and Terms of Employment Act

I find that the complaint made pursuant to the Minimum Notice and Terms of Employment Act is well-founded and I order that the Respondent shall pay to the Complainant compensation of €741.00 being the equivalent of two week’s pay.

CA-00008991-003 – Complaint under the Organisation of Working Time Act, 1997

I find that the Complaint pursuant to Section 27 of the Organisation of Working Time Act, 1997 is not well founded.

CA-00008991-004 – Complaint under the Terms of Employment (Information) Act, 1994

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant the compensation in the amount of €741.00 being the equivalent of two week’s pay in respect of the contravention.

Unfair Dismissals Acts 1977 to 2015 – Summary Dismissal – Procedurally unfair - Minimum Notice and Terms of Employment Act 1994 – Complaint well-founded - Organisation of Working Time Act 1997 – Annual leave – Complaint not well-founded - Terms of Employment (Information) Act 1994 – Section 3 - Failure to provide written terms and conditions – Complaint well-founded