Complainant

Respondent

Anonymised Parties

A Car Technician

A Car Dealership

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00016891-001

17/01/2018

The complainant was employed by the respondent, a car dealership, as a technician from 1st September 1989 to 7th November 2017. He was paid €540.00 gross per week. He lodged a complaint for Unfair Dismissal with the WRC on 17th January 2018. The preferred redress of both parties is compensation.

The respondent provided a detailed written submission.

The respondent strongly refutes the claim of Unfair Dismissal and maintains that the complainant was dismissed following the proper engagement of its disciplinary process following the investigation of a number of serious allegations with respect to the complainant.

The respondent submits that on 18th May 2016, the respondent’s Group Aftersales Manager, wrote to the complainant to communicate to him a number of concerns relating to both his performance and absence issues. In this letter it was intimated to the complainant that the company understood that circumstances can occur in which an employee may need to take time off and sick leave at short notice and it was outlined to him that he had a total of 9 days sick leave/ absenteeism which far exceeded the Company average. Serious performance issues were also highlighted in the letter in which the complainant was advised that he had incorrectly ordered 3 keys for the same vehicle resulting in a cost to the company of €393 + VAT along with the serious issue of the complainant’s failure in checking part numbers on paperwork attached to job cards resulting in incorrect parts being given to the technicians. The failure in checking these part numbers resulted in the urgent need to get all cars affected back to the garage to be checked, which was both of significant impact and financial detriment to the company. This correspondence of the 18th May 2016 followed a previous meeting with the complainant and his union representative in 2015 were similar concerns had been raised.

Following this, on 24th October 2016 the respondent’s Parts Manager, Mr B wrote to the complainant requesting him to attend a disciplinary hearing on 28th October 2016 which would be attended by a HR Consultant. The hearing was then rescheduled at the request of the complainant and took place on November 2nd 2016 and discussed concerns relating to the complainant’s attendance levels at work, adherence to the respondent policy and the impact on the complainant’s performance. The letter highlighted that so far in that year the complainant had 21 absences which was an increasing trend from 2015 and concerns relating to the complainant’s failure to follow the Notification of incapacity for work procedure were also highlighted in this letter. Further to this several concerns relating to the complainant’s performance which had arisen post May 18th 2016 were outlined.

At the hearing of November 2nd 2016 and in response to the concerns relating to a high level of absenteeism, the complainant acknowledged the level of absence and noted that he was ‘getting old’ and that the absences had arisen for several reasons including family illnesses. It was noted the complainant did not dispute that he had failed to follow notification procedures on several occasions. It was further noted by the complainant and his representative that the complainant’s attendance would improve in the future and that he would comply with notification procedures. The concerns relating to the complainant’s performance were also put to him and opportunity given to fully respond.

It was outlined to the complainant that all these issues were impacting the business, its reputation, customer satisfaction and the workings within the workshop as well as having a financial cost. In response, the complainant took responsibility stating that he may have made mistakes and that he had ‘taken his eye off the ball’ and that if someone were to check the system at the end of the day it might prevent certain issues regarding parts orders not being submitted. Following thorough consideration of the complainant’s response he was issued with a verbal warning which was to remain on his file for a 9 month period.

Approximately two and half months later the complainant was invited to another disciplinary hearing owing to new concerns relating to his attendance and adherence to the respondent policy, his conduct and his performance.

Following thorough consideration of all the facts the complainant was then issued with a first written warning which was to remain on his file for a period of 12 months.

One month following this issuing of the sanction the complainant, further concerns arose relating to the complainant’s conduct and performance and he was invited to a disciplinary hearing to discuss these concerns, a hearing which was to be held on May 3rd 2017. These concerns included; a disputed credit card, the Company Policy on payments accepted for Goods/ Services and details of a customer complaint as well as a negative review of the company by the customer on the company’s online Facebook page.

Similar to the process engaged in to-date, the complainant was afforded the opportunity to bring a representative to the hearing, and was accompanied by a SIPTU official. At this hearing the complainant raised a number of points which led to further clarification being sought which were thereafter provided to the complainant.

The complainant was afforded opportunity to respond/ comment on these points of clarification but chose not to make any comments on the follow up items. Following a thorough and fair process as well as consideration of the complainant's responses to the concerns a final written warning was issued to the complainant which was to remain on his file for a 12 month period. The letter further outlined

‘Should you fail to achieve the required standard you may be subject to further disciplinary action up to and including dismissal’.

The respondent submits that the complainant was invited to attend a disciplinary hearing on July 14th 2017 to discuss concerns relating to his attendance and performance. The concerns outlined in this letter included; year to date absence of 24.5 days, stated as an increasing trend continuing from previous years and an incorrect part for a warranty car being ordered leaving the respondent with a €1,053 shortfall.

The complainant was afforded the opportunity to bring a representative to the hearing and the seriousness of these on-going matters being addressed through the formal disciplinary process were outlined to The complainant, to highlight that should any further sanctions arise this may result in the termination of his employment. The hearing was to be attended by Mr B, and a HR Consultant.

On the day of the scheduled hearing the complainant’s representative, a full-time SIPTU official, disputed that the hearing should go ahead. Upon the request of SIPTU, the hearing did not proceed. The company agreed to SIPTU’s request that an investigation be carried out separately. It was noted that any resulting outcome may result in the requirement to convene a disciplinary hearing.

SIPTU further requested that the complainant's manager, Mr B would not be involved in the investigation as he was aware of the specifics of the concerns. The company agreed to the request of SIPTU.

On July 26th 2017 the investigator wrote to the complainant setting out the Terms of Reference to the investigation and to advise of the specific concerns that were to be investigated as well as outlining the documentary evidence that was being provided to him in advance. Mr C, a senior manager with the respondent conducted the investigation.

In summary, the Investigator concluded the following; that the level and frequency of absences was unacceptable and that the complainant was at fault regarding the ordering of an incorrect part. 

The company wrote to the complainant on August 24th 2017, requesting him to attend a disciplinary hearing following the outcome of the investigation.

The disciplinary hearing was conducted by the respondent’s Director, Mr. M, the HR Consultant was in attendance as well as the complainant and his SIPTU representative.

At this hearing the complainant’s representative raised concerns pertaining to the attendance of the HR Consultant as, in the union official's view, he was biased as he would have been involved in the previous disciplinary hearing if it had progressed. The previous hearing as scheduled on July 14th 2017 did not progress. The HR consultant did not in turn attend this hearing as it did not progress. In the interests of progressing matters of concern at the time of the previous planned hearing and to ensure the complainant was provided with every opportunity to respond in full, at the request of the SIPTU official, the respondent decided not to progress with a disciplinary hearing at that time in order to allow for a separate investigation to take place into the two named concerns of the letter of July 11th 2017. As the HR consultant did not partake in this disciplinary hearing, nor was he given any opportunity to reach any conclusions or outcomes on the matter, his involvement, according to the respondent, could not therefore be perceived to be prejudicial.

Following the hearing, Mr M sought further clarification from the Group Parts Manager in relation to the details of absences for the complainant from July 11th 2017 and also absences between the period January 1st 2017 – July 10th 2017.

Further clarification was also sought in respect of the purchase of the incorrect part. Upon receipt of those clarifications and having given thoughtful consideration to the responses put forward by the complainant, a decision to dismiss was communicated to the complainant on September 7th 2017,

The complainant was afforded opportunity to appeal the decision to dismiss, an opportunity he availed of on September 12th 2017. The appeal was heard on September 28th 2017 and the complainant was in attendance with his SIPTU representative. The complainant was given ample opportunity to elaborate on his grounds to appeal and provided the following information relating to each of the grounds.

Following the conclusion of the disciplinary appeal hearing and having taken the time to carefully consider all aspects of the complainant’s appeal, Mr. M wrote to the complainant on 13th October 2017 outlining his decision, and the complainant’s dismissal with effect from 7th September 2017, was confirmed.

Mr B gave oral evidence at the hearing. He gave evidence to support the contention that the complainant had not followed correct notification procedures and that the complainant's absences had had a negative impact on the business.

Another witness, who had made the decision to dismiss, stated that he had considered a lesser sanction but it did not seem to him that things were improving nor would they improve.

In closing, the respondent stated that case law in the area supports the actions of a reasonable employer, through two years of process.   There was an informal process in 2015/16 followed by an 18 month formal process, throughout which the complainant was well represented but the concerns raised by the employer were not dealt with by the complainant. Natural justice was afforded to the complainant at all times and through each stage. The complainant only chose to appeal at the dismissal stage, not at any stage before that. He did not improve and what was any reasonable employer to do; the decision to dismiss was fair.

The complainant provided a detailed written submission.

The complainant submits that he was unfairly dismissed. It is the complainant's case that the sanction of dismissal was disproportionate, that the employer did not follow fair procedures and natural justice and all circumstances were not taken into account.

The complainant submits that he was a good employee, with no warnings on his file. However, within a short period of time, between November 2016 and July 2017, a span of six months, he received a verbal, a written and a final written warning. He received his final written warning on 26th May 2017. A month and a half later he was called to another disciplinary hearing ion 11th July 2017.

The complainant submits that his verbal warning was related to; a) his absenteeism and not following the company notification procedures, b) performance issues. His written warning related to performance issues and being late on one occasion.   His final written warning related to a performance issue, i.e. ordering an incorrect part. The complainant wishes it noted that the costs associated with the ordering of the wrong part were deducted from his salary.

At the hearing in July, the complainant told his employer that the reason behind many of his absences was because of his mother's illness, he was the only person who could attend her but that she had recently been moved to a nursing home and he was optimistic that this requirement would not happen in the future. The complainant also told his employer that all his requests for days off to look after his mother were granted by the employer. He also pointed out that his sick leave was never questioned and he was never sent to a company doctor.

The complainant puts forward that following a hearing on 31st August the complainant was dismissed on 7th September.  

The complainant contends that fair procedures were not followed by the respondent in that the HR consultant, referred to above, was involved in the disciplinary process on more than one occasion and he should not have been involved in the disciplinary process which subsequently resulted in his dismissal.

The complainant also contends that the employer did not take all mitigating circumstances into consideration when it reached a decision to dismiss him. Namely, in relation to the ordering of the wrong part, there is no written policy with details of what to do if the car is outside the normal warranty period, as was the case in this instance; the complainant should not be punished for making a judgement call when there is no clear guidance on the subject.

In relation to the absence levels the complainant was absent for 24.5 days between January and June 2017, around half of which were caused by health related issues, these were attributable for absences between January and March. All other absences (apart for one day in June) were attributable to his mother being in need of assistance. The complainant believes that the respondent should have made a distinction between the two types of absence. The complainant also notes that there is no specific absenteeism tolerance level written in the policy. The complainant submits that his attendance improved significantly from March 2017 onwards.

The complainant also submits that the decision to dismiss him was an unwarranted or at least a disproportionate sanction, and an unreasonable one.

In oral evidence at the hearing the complainant stated that he was an only son and his mother suffered from Alzheimer's disease. He also stated that there never seemed to be a problem when he looked for leave.

The complainant also stated that within two weeks of being let go he heard that the respondent had lost the sales element of their agency. In his opinion the respondent had a fair idea that this was coming and that the matter of his being let go and a redundancy payment for a long-service employee coincided.

The complainant outlined the actions he had taken to mitigate his loss since his dismissal. He had applied for several jobs and had got a temporary job for four months in the last 12 and had been working fulltime for the last three weeks. He stated that he had only been applying for jobs once every two weeks.

In closing, the complainant stated that he should have been seen by a company doctor before being dismissed. He also stated that the respondent was under an obligation to give him support and put an action plan in place to help him achieve required performance levels, but this was not done.

S6(4)(a) of the Act states 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 the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

On the face of it this matter was procedurally fair, the process used was in line with company procedures and natural justice. However, on closer inspection I have concerns in relation to the speed of the process and in relation to the substantive matters used to validate the dismissal.

It would seem to me that this was a rushed process, as if the respondent was under time pressure to reach a conclusion. The entire process from issuance of the verbal warning, 10th November 2016 to issuance of the notice of dismissal, 7th September 2017, took under 10 months from start to finish. Whereas it is not possible to define how long a disciplinary process should take, as the circumstances of every case differ, in cases of performance and absence there must be adequate time allowed for the employee to address their shortcomings; I do not believe the complainant in this case was given the time, or support, needed to demonstrate he had improved his performance and level of attendance.

On the substantive issues, I find that the reasons given for the dismissal were an amalgamation of issues, artificially combined, to attain a critical mass, done in order to justify a dismissal. In relation to this it should be noted that the Final Written Warning issued to the complainant makes no mention of absence levels, yet in the letter of dismissal the matter of absenteeism was noted as a reason for the imposition of the dismissal.

If taken independently, the performance issues required the respondent to put a programme in place to assist the complainant in addressing them; this did not happen. The complainant was not given the requisite support to address his performance failings.

The absence issue required an intervention by the employer, which best practice would say includes getting a medical opinion, however, the employer seemed to be satisfied to allow the absence issue go on without doing anything other than discipline the complaint on foot of it. There was no real attempt to address the underlying reasons for the absences. Ironically the absence levels had improved greatly in the period running up to the dismissal.

An employee, with more than 28 years' satisfactory performance, deserved to be treated better.

In the circumstances I find the decision to dismiss the complainant to be disproportionate.

Having considered the matter carefully, on the balance of probabilities I find that this was an unfair dismissal.

I also find that the complainant did not help himself when he did not appeal any of the warnings until he had been dismissed and that since his dismissal, his attempts to mitigate his loss have been less than would be expected.

Having regard to the totality of evidence adduced by the Parties at the hearing, including the complainant's evidence in relation to his loss to date attributable to his dismissal and his efforts to mitigate that loss, I award the complainant €15,120 by way of compensation, being the equivalent of 28 weeks’ remuneration. As the award is made by way of compensation for loss of earnings it is subject to income tax.

Performance, conduct, absence, improvement