ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011557

Parties:

Complaints

Date of Adjudication Hearing: 16/08/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,andfollowing the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

BACKGROUND.

The Complainant was employed from 2nd June 2014 until the employment terminated on 14th September 2017 with four weeks wages paid in lieu of notice bringing the termination date to 12th October 2017. The Complainant was paid £13.00 an hour and he worked 38 hours a week. He was provided with a written statement of his terms and conditions of employment including the Grievance and Disciplinary Procedures of the Company.

The Complainant referred complaints to the Workplace Relations Commission on 27th October 2017 alleging the Respondent had breached the Payment of Wages Act, 1991 – had breached the Minimum Notice and Terms of Employment Act, 1973 and the Unfair Dismissals Act, 1977 – 2015.

SUMMARY OF COMPLAINANT’S POSITION.

Payment of Wages Act, 1991. The Complainant stated that his Employer had made an unlawful deduction from his wages. He stated that he worked 5 days a week and he attended work 30 minutes prior to the opening of the Store where he was the Manager and he remained 10 minutes post the closing of the Store. He stated that as Store Manager he was responsible for setting the rosters each week to be forwarded to the HR and Operations Manager for their agreement. He stated he was not paid for these times he attended. He also stated this has been on a continuous basis since the commencement of his employment and he is claiming approx. £3619.59 (278 hours 43 minutes x 13.00 an hour).

Minimum Notice and Terms of Employment Act, 1973. The Complainant in his complaint form asserted he had not been paid his minimum notice. However at the Hearing the Complainant confirmed he had been paid 4 weeks pay in lieu of his notice.

Unfair Dismissals Act, 1977 – 2015. The Respondent presented his submission in relation to the complaint of unfair dismissal and the Complainant responded at the Hearing. The Complainant stated that on 4th September 2017 the Complainant was due to attend work at 9am for the purposes of readying the Store. He was some 40 minutes late as a result of assisting a friend of his with his wedding preparation on the day he was married.

The Named HR Manager by email dated 8th September 2017 requested the Complainant to attend a meeting to discuss his late attendance and this meeting was scheduled for 13th September 2017. This was his day off and the meeting was scheduled to 14th September 2017. The meeting proceeded on the 14th September despite the Complainant’s request to defer so his impartial colleague was available to attend with him. The meeting began at 10.00 and concluded at 10.03. He was immediately handed a letter of termination of his employment informing him he was summarily dismissed for breach of Company Policy in relation to four identified areas concerning his late attendance on 4th September 2017.

The Complainant appealed the dismissal by way of a letter dated 22nd September 2017. There was no response from the Employer and to date there has been no appeal hearing in relation to the dismissal.

Over the course of his employment he was rostered to commence work at 10am but he was required to attend work 30 minutes in advance.

The Complainant argued that the Complainant was late on one occasion on 4th September 2017. They identified case law to support their argument that the Complainant was not afforded fair procedures in relation to his dismissal – that the decision to dismiss was unreasonable in the circumstances of this case – this should be a last resort of any Employer and the fact he was not afforded a right of appeal.

The Complainant stated he had been in receipt of Job Seekers Benefit and this was confirmed by the Department of Social Protection by letter dated 16th August 2018 in which they confirmed the Complainant had been in receipt of this Benefit from 26/9/2017 to 25/7/2018. The Complainant commenced employment on 25th June 2018 earning £32,000 per annum and this was verified in the Contract of Employment provided post the Hearing.

SUMMARY OF RESPONDENT’S POSITION.

Payment of Wages Act, 1991.

The Respondent stated there was no deduction from the Wages of the Complainant. The Complainant was provided with a written statement of his Terms and Conditions of Employment signed and dated by both Parties on 23rd June 2014. This provided he was to be paid £13.00 an hour and he was required to work 37.5 hours a week.

The Respondent introduced what they referred to as Commitment Time which was not compulsory. The Complainant set up the roster for the employees in his Store each week and also for himself and the Complainant sometimes did arrive early to open his store and to make sure it was ready for business each day. It was a matter for the Complainant as Store Manager to make sure his store was ready for business and it was a matter for him as to what time he arrived at the Store which was due to open at 10am.

Minimum Notice and Terms of Employment Act, 1973.

The Complainant’s employment terminated on 14th September 2017 and he was paid 4 week’s pay in lieu of notice.

Unfair Dismissals Act, 1977 – 2015.

The Respondent stated that the Complainant’s initial misconduct came to the attention of the Company with a decrease in the GM’s of the Store where he was Store Manager with some items sold less than the RRP and certain promotions were being sold at the wrong price. When questioned the Complainant stated that he thought his own offers would generate better KPI’s, but that he was fully aware of what he was doing. He was called to a meeting on 29th June 2017 following which he was suspended to allow an investigation to be carried out. It was anticipated the suspension would last until 13th July 2017. This was extended by letter dated 12th July 2017 to 18th July 2017. He was invited to attend a meeting to discuss the findings on 18th July 2017. The Complainant in a letter of 17th July 2017 confirmed he would not attend until he was provided with all documentation relating to the investigation. The Respondent offered him time to come and inspect all the documentation on site and a date of 27th July 2017 was proposed. The Complainant did attend this meeting in relation to eight allegations of breach of Company Policy.

He was invited to attend a meeting on 10th August 2017 to discuss the outcome of the Disciplinary Meeting at which he was presented with the details of the loss to the Company and he was issued with a Final Written Warning..

The Complainant was given details of further misconduct by the HR Manager on 8th September 2017 in relation to issues arising from 4th September 2017. The Complainant asked for 4th September 2017 as a Days annual leave. This was denied as he had failed to give notice and there was no other Manager available on that day. He arrived late for work and did not notify Management he would be late. He did not seek authorisation for a named Sales Assistant to open the Store alone on the morning. This Sales Assistant was not trained on opening a Store and Health and Safety requires there are two people opening and closing a store at all times. He was informed by letter dated 14th September 23017 that this amounted to gross misconduct and the Company also informed the Complainant on the same day that his employment was being terminated. He was afforded a right of appeal. The Respondent confirmed the Complainant did appeal his dismissal but he did not state the grounds of his appeal. The Respondent stated they phoned the Complainant requesting his grounds of appeal to be set out in writing. This was not done with the result there was no appeal hearing.

The Respondent quoted case law in support of their argument that all fair procedures and natural justice had been applied to this dismissal. The Respondent also confirmed at the Hearing that they did not consider an alternative to dismissal as the Complainant was already on a final written warning at the time of the incident of 4th September 23017.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

FINDINGS AND CONCLUSIONS.

Payment of Wages Act, 1991 CA-00015434-001

There was no evidence presented to me by the Complainant concerning any deduction made from the wages he received each week. The Complainant was a Manager of a Store and he had the responsibility to ensure the Store was opened and closed each day. Both Parties confirmed that the Complainant did sometimes arrive early and stay after closing time to ensure the Store was ready to open for business each day.

Minimum Notice and Terms of Employment Act, 1973 CA-00015434-003

Both Parties confirmed at the Hearing that the Complainant was paid 4 weeks wages in lieu of notice on termination of his employment.

Unfair Dismissals Act, 1977 – 2015 CA-00015434-002.

On the basis of the evidence I find as follows –

The Complainant was dismissed on 14th September 2017 with four weeks pay in lieu of notice with the date of dismissal being therefore 12th October 2017 in accordance with Section 1(1) of the Act.

Both Parties confirmed the Complainant was in receipt of a Final Written Warning by letter dated 10th August 2017 with a stipulation that he would now be subject to a 12 month monitoring period. He was also informed that if there were any “further breaches….you will be subject to the next stage of the disciplinary process, which in this case would be dismissal.” -There was no evidence presented to me by the Complainant that he appealed this decision.

Section 6(7)(b) of the Act provides as follows: 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 (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) of Section 7(2) of this Act. “.

Section 7(2) of the Act provides as follows – (d) “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 subsection (1) of Section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.”

Section 14 (4) of the Act provides that an employer shall if so requested furnish to the employee within 14 days of the request particulars in writing of the principal grounds of the dismissal.

S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 sets down the procedures to be followed by an Employer in the context of a dismissal.

The established facts from both Parties in summary are –

The Complainant was on a Final Written Warning effective from 10th August 2017 for a period of 12 months – The Complainant had requested annual leave to be taken on 4th September 2017, which was refused as the Complainant had not applied in time in line with procedures and there was no other Manager available to replace him on the day – He arrived late for work on 4th September 2017 and an Assistant had been delegated by him to open the Store which the Respondent asserted was against procedures for Health and Safety reasons – The Respondent issued an email dated 8th September 2017 to the Complainant setting out the four breaches being (1) breach of company leave policy (2) Breach of Lateness policy on 4/9/2017 (3) Allowing an unauthorised team member to open the Store unaccompanied (4) Acting in a manner that damages the relationship of trust and confidence.

The Complainant was invited to attend a Disciplinary Meeting on 14th September 2017. He was informed of his right to bring a colleague. He attended the Hearing following which he was issued with a letter dated 14th September 2017 informing him of the decision of the Company to terminate his employment based on the Final Written Warning that had been issued to him on 10th August 2017, to remain for a period of 12 months, and the events of 4th September 2017in relation to Breach of Company Leave Policy – Breach of Lateness Policy – Allowing an unauthorised person to open the Store unaccompanied and Acting in a manner that damages the relationship of trust and confidence between the Company and members of management. The Respondent confirmed at the Hearing that no alternative to dismissal was considered by the Respondent given the Complainant was already on a Final Written Warning effective from 10th August 2017 and the incident that led to his dismissal happened on 4th September 20217

I note the Complainant sought clarification of the Respondent’s letter dated 8th September 2017 setting out the 4 breaches. This was provided to the Complainant by the Respondent on 12th September 2017.

The Complainant was afforded a right of appeal by 28th September 2017 to a named Manager setting out reasons for his appeal in writing. The Complainant did appeal his dismissal on 22nd September 2017 setting out his reasons as follows – He gave more than 1 weeks notice request for a day off (which was refused) – he was less than one hour late and that is not a serious thing – the health and safety thing about needing 2 people to open is not true, I thing everyone is authorised to open the shop. However the evidence was that no appeal hearing took place with the Respondent stating they phoned the Complainant asking him to set out in detail the grounds for his appeal and this was not done. Consequently there was no appeal. The Complainant disputes the Respondent phoned him after he submitted his appeal on 22nd September 2017.

S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 sets down the procedures to be followed by an Employer in the context of a dismissal. This Code of Practice was approved by the then Minister, Ms Harney on 26th May 2000. It is clear that the Complainant was not afforded fair procedures and natural justice in relation to the failure of the Respondent to conduct an appeal when the clear evidence was that the Complainant had appealed his dismissal and had set out the grounds of his appeal on 22nd September 2017.

Section 6(4) of the Act provides as follows - 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. It is clear from the evidence presented to me that the Complainant contributed to his own dismissal

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00015434-001. Payment of Wages Act, 1991. On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded

CA-00015434-003 – Minimum Notice and Terms of Employment Act, 1973. On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA—00015434-002. Unfair Dismissals Act, 1977 – 2015. On the basis of the evidence, my findings above and in accordance with Section 8(1)(c) of the Act I declare this complaint is well founded only in so far that the Complainant was not afforded fair procedures in relation to his appeal dated 22nd September 2017 which was never held. However I have also concluded that the Complainant by his conduct contributed substantially to his dismissal. In the circumstances of this case I direct the Respondent to pay the Complainant compensation of €6000.00.

Dated:   17/12/18

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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