UDD1869

The cognisable period for the purpose of the Act is 13th July 2016 to the 12th January 2017.

In this Determination, the parties are referred to as they were at first instance. Hence Mc Currach UK Ltd is referred to as the ‘Respondent’ and Ian Mulcahy as ‘the Complainant’.

Background

Mr Mulcahy’s original starting date in this field was in 2007 and in 2013 he was transferred under a transfer of undertakings in to the Respondent’s employment. Mr Mulcahy was dismissed by the Respondent on the 20th October 2016 without notice.

Respondent’s case

On the 23rd August 2016, one of the Respondent’s clients alleged that the Complainant had been involved in the unauthorised removal of stock from one of their sites. The Complainant was invited to an investigation meeting in relation to this allegation. The Complainant advised that the issue surrounding the stock was a misunderstanding between himself, the assistant manager of the store and the store’s security guard. The Complainant accepted that he issued a credit note to cover the value of the stock in breach of the credit note policy with which he was familiar. The Complainant was invited to a disciplinary meeting. Following the disciplinary meeting the Complainant received a final written warning in respect of his conduct and was warned that there must be “consistent feedback to your line manager of any issues that may impact on the level of service you provide on behalf of our principle.”

In October 2016 the Complainant was again called to an investigation meeting regarding the issue of credit notes. This was followed by a disciplinary meeting on the 20th October 2016. In the course of the meeting the Complainant confirmed that he was aware of the credit note policy and that in the past he had signed a number of credit notes.

Mr Hennessy Area sales Manager with the Respondent confirmed in his evidence to the Court that he was the decision maker in relation to the decision to dismiss. He confirmed that he had also been involved in the previous disciplinary hearing when the decision to give a final written warning was made. Mr Hennessy accepted in his evidence to the Court that the Disciplinary meeting lasted a total of 20 minutes when the time for breaks is deducted. It was his evidence that he made the decision to dismiss when the meeting reconvened at 10.45am. He was influenced by the statement of the Complainant in response to a question where the Complainant stated that he may have signed 1 or 2 other credit notes that they were not aware of. At that point Mr Hennessy informed the Complainant that he was being dismissed with immediate effect but that he had a right to appeal the decision to dismiss. Mr Hennessy informed the Complainant that if he had not had an existing sanction he would have received a written warning but due to your previous sanction which states “should there be any repeat of this conduct or indeed any misconduct in general during this period we may take further disciplinary actions that could result in your dismissal.” The meeting finished at 10.50 am.

Mr Hennessy in his evidence confirmed to the Court that he did not take any time out to consider what had been said nor did he ask the Complainant if he had any mitigation to offer in relation to his breach of the company policy. It was Mr Hennessy’s evidence that the Complainant was already on a final written warning, therefore dismissal was the only option.

Ms O’ Leary was appointed to hear the appeal. In her evidence to the Court she confirmed that she tried to schedule an appeal hearing on a number of occasions. However, there was a dispute between the Complainant and the Respondent as to his entitlement to have a solicitor attend the appeal hearing with him. The Company handbook clearly states, and the correspondence to the Complainant clearly stated that representation is by an appropriate Trade Union or a work colleague. The Complainant did not attend the appeal hearing which eventually went ahead in his absence. Ms O’ Leary upheld the decision to dismiss.

Complainant’s case

The Complainant does not dispute the facts as set out by the Respondent in relation to the first incident and confirmed to the Court that he did not appeal the final written warning issued in August 2018. It is the Complainant’s case that he did not issue any credit notes or breach the policy following his final warning in August 2016. The credit note that formed the basis of the investigation and disciplinary process in October 2016 was issued in June 2016 and he was under the impression that the Respondent was aware of it at the time of his warning in August2016. It is the Complainant’s case that there was an element of pre-judgment in the second disciplinary hearing as Mr Hennessy had dealt with the first disciplinary procedure and had issued a final warning in relation to same.

It is the Complainant’s case that Mr Hennessy in his evidence to the Court and in his engagement with the Complainant stated that it would have been a final warning but for the fact that he was already on one. The difficulty with this in the circumstances of this case is that he was being disciplined for something that preceded the first disciplinary warning and not something that occurred while he was on the final warning. There is also a lack of clarity around how the June credit note came to light and why it only surfaced in October 2016.

It is the Complainant’s contention that he was not afforded fair procedure. That Mr Hennessy as the decision maker in relation to his dismissal did not take time out to consider all the facts and all the options available to him after the meeting on the 20th October. Instead Mr Hennessy made his mind up in the course of the meeting and because of Mr Hennessy’s previous involvement in a disciplinary hearing with the Complainant he was predisposed to dismissing 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)……

Section 6(1) states

“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.”

Issue for the Court

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

Discussion

The Complainant’s case is that his dismissal was unfair as the process that led to the decision to dismiss him does not meet the standard for fair procedure set out in case law.

In the case of Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed:

• “Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

  1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

  2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

  3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

  4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

  5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

In the case before the Court the Respondent is seeking to rely on the fact that the Complainant was on a final written warning in relation to a similar incident and was therefore on notice that any further incidents could lead to his dismissal. This was confirmed by Mr Hennessy in his evidence to the Court when he stated that the Complainant was advised” should there be any repeat of this conduct or indeed any misconduct in general during this period we may take further disciplinary actions that could result in your dismissal”

The difficulty that arises with relying on that final written warning is that the incident being relied on by the Respondent predates the issuing of the final written warning and therefore the Complainant was not on notice at the time of the alleged breach of policy in June 2016. The second difficulty that arises is that the decision maker Mr Hennessy in his evidence to the Court confirmed that he made the decision to dismiss in the course of the meeting and within a five- minute period. It is difficult to see how a decision to dismiss made in those circumstances could meet the principals of natural justice bearing in mind that this was not a summary dismissal.

The Court notes that the Complainant did not dispute that he was aware of the policy and that he had not followed same. The Complainant eventually admitted to the Respondent that there had been other occasions where he had not followed the policy. The Complainant therefore, contributed to his own dismissal.

The Court having read the submissions of the parties and listened to the evidence and the oral submissions on the day finds that the Complainant was unfairly dismissed.

The Court having considered the remedies available has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.

Having assessed all the information before it, including, the conduct of the Complainant the Court considers that the Complainant has suffered financial loss as a result of the wrong he has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €27,000

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €27,000. The decision of the Adjudication Officer is upheld. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
18 December 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.