UDD1865

Background

The Complainant commenced an internship with the Respondent in July 2014 and was employed in the position of trainee accountant with effect from 5^thMay 2015. It is the Respondent’s position that the Complainant was dismissed as he lacked the competence or capability to perform the role he was employed to perform. It is the Complainant’s position that he was not adequately supported in his role and consequently could not learn and develop effectively during his employment. He did not dispute that he had ‘floundered’ in his work for a prolonged period of time.

The Respondent, in the letter to the Complainant terminating his employment outlined the following as ‘some of the main reasons’ for the decision to dismiss:

• 
  •The standard of the Complainant’s work had not improved as anticipated over time

  •The Complainant’s work is of an inefficient standard

  •The fees generated from the Complainant’s client base are below a commercially viable level

  •The Complainant continues to make basic bookkeeping errors

  •The Complainant struggles to understand basic accounting and business principles

  •The Complainant regularly cannot recall work he undertook in recent weeks

  •The Complainant fails to follow instruction in certain non-data processing areas.

The fact of dismissal is not in dispute.

Respondent’s Case

It is the Respondent’s case that the dismissal was fair in all the circumstances of this case.

The Respondent submitted that the Complainant was employed as a Trainee Accountant but that he failed, refused and neglected to qualify as an accountant. It is the Respondent’s case that the Complainant was not suited to his role and was not capable of performing his contracted position.

The Respondent submitted that the Principal in the firm, Mr DM, gave constant support and feedback to the Complainant throughout his employment but that basic errors continued to occur. In addition, qualified personnel were in the office with the Complainant every day from December 2014 onwards who were available to offer support and advice.

The Respondent submitted that the Complainant was dismissed rather than made redundant notwithstanding the erroneous use of the term ‘redundant’ in the letter of termination. The Respondent, in response to a query from the Court, confirmed that no formal training or development plan had ever been put in place for the Complainant.

In evidence Mr DM stated that the standard of the work of the Complainant was not satisfactory despite having been trained by Mr DM who consistently showed him what had to be done. Mr DM stated in evidence that the decision to dismiss the Complainant at the time he was dismissed was taken because he had found somebody else with more experience. Mr DM clarified to the Court that had he not found that other person he would not have dismissed the Complainant at the time he was dismissed because the business needed even the small contribution being made by the Complainant. Mr DM agreed that there was no disciplinary procedure in place in the employment but stated that a grievance procedure had been supplied to the Complainant. There had been no meeting between the parties at the end of the employment and no occasion where the Complainant could respond to any charge which threatened his employment. Mr DM accepted that the termination had occurred outside any procedure involving the application of the basic principles of natural justice. Mr DM agreed in evidence that the operative reason for the decision being taken to dismiss the Complainant on 17^thFebruary 2017 was the fact that the Respondent had found somebody else to carry out the role.

Complainant’s Case

The Complainant does not dispute that he had difficulty in carrying out his work to the standard expected by the Respondent. He submitted that the Respondent did not train him effectively and did not give him the level of support necessary to improve his performance. He joined the Respondent as an Accounting Technician who had completed his exams but who needed two years’ employment experience to complete his qualification.

He submitted that he had not been provided with a grievance procedure while in the employment and submitted that he was not aware of any disciplinary procedure in place in the employment.

He submitted that there was no requirement placed upon him to undertake specific training programmes or to embark upon a programme leading to qualification as an accountant. He submitted that he was summarily dismissed by the Respondent and had no opportunity to defend himself or to raise or pursue a grievance in relation to the matter. He submitted that he was not offered an opportunity to appeal the decision to dismiss him.

The Law

Section 1 of the Act defines dismissal in the following manner

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

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

• “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, …..

Dismissal as a fact is not in dispute and so therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

The issue before the Court on appeal is whether, in all the circumstances of this case, the Respondent’s decision to dismiss was within the range of what could be expected of a reasonable employer in the circumstances. In addition, the Court must consider whether the procedures employed by the Respondent and which resulted in the Complainants dismissal were fair and observant of the Complainant’s right to natural justice.

Much emphasis was placed by the Respondent in its submission and in evidence on the failure of the Complainant to undertake the training necessary to qualify as an accountant. There did not appear to any dispute before the Court however that the Complainant was recruited at a point where he had completed academic exams necessary to qualify as an accounting technician but at a point when he needed to complete two years of employment in order to finalise his qualification. No evidence has been put before the Court which would suggest that the Complainant was under any contractual obligation to embark upon the training necessary to qualify as an accountant.

The Court notes that the letter of termination given to the Complainant set out a range of factors which had led to that decision. That letter made no mention of any concern as regards the Complainant’s failure to undertake training designed to lead to him becoming an accountant. The Court must therefore conclude that, at the time the decision was taken to dismiss the Complainant, the matter of the Complainant’s non-participation in accountancy training was not a factor which formed part of that decision.

The Court, on the submission of the Respondent, notes that no contention is made that the Complainant had been dismissed by reason of redundancy.

The Court was provided with evidence from the decision maker in the matter, Mr DM, that the operative reason for the dismissal of the Complainant at the time of his dismissal was the fact that the Respondent had found somebody else to carry out the work of the Complainant. Mr DM stated in evidence that he would not have dismissed the Complainant at that time had he not found that other person. The Court therefore finds that the operative reason for the dismissal of the Complainant at the time the decision was taken to dismiss was not as set out in the letter of termination.

It is clear that the Respondent had concerns as regards the standard of work of the Complainant but quite clearly those concerns were not the operative reason for his dismissal at the time he was dismissed. The Court notes that the Respondent had not issued any formal warning to the Complainant at any time throughout his employment relating to the standard of his work albeit that in September 2015 the Respondent did indicate that a recurrence of a particular event could result in a warning being issued.

The Court therefore finds that the Complainant was not dismissed by reasonof his capability, competence or qualifications to perform work of the kind which he was employed by the employer to do. The Court finds that the Complainant was dismissed at the time of his dismissal by reason of the Respondent having found somebody else to do the job.

The Respondent confirmed to the Court that no disciplinary procedure was in place in the employment and that no process of engagement was undertaken at the point of termination of the employment. He was given no opportunity to respond to any charge against him and he was not given an opportunity to appeal the decision to dismiss him.

The parties were in dispute before the Court as to whether the Complainant was ever provided with a grievance procedure. The Court finds that it is not necessary for the Court to resolve that conflict between the parties in order to determine the within matter.

Taking account of all of the evidence provided to the Court and the submissions of the parties, the Court finds that the dismissal of the Complainant was both substantively and procedurally unfair. He was dismissed because of a factor outside of his control and was not afforded an opportunity to engage with the employer as regards his dismissal and was not provided with details of any disciplinary procedure in the employment.

Determination

The Court determines that the Complainant was unfairly dismissed. Having regard to the earnings of the Complainant at the date of his dismissal, the financial loss he has suffered and his efforts to mitigate that loss the Court orders the Respondent to pay compensation to him in respect of the loss he has suffered as a result of his dismissal in the amount of €28,744.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
13th December 2018______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.