Complainant

Respondent

Anonymised Parties

Graphic Designer

Print Company

Representatives

Kenny Sullivan Solicitors

Management Support (Ireland) Ltd

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-00010574-001

31/03/2017

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

CA-00010574-002

31/03/2017

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

CA-00010574-003

31/03/2017

The complainant was employed as a Graphic Designer by the respondent. He was a full-time employee and was paid €884.00 gross per week.   The issue at the centre of the dispute between the parties is in regard to the actions of the complainant in taking home a work computer for personal use. Following a second incident on 3 March 2017 the respondent’s owner took the decision to dismiss the complainant.

The complainant borrowed the computer from work as he was familiar with operating it and he had documentation of an urgent and personal nature to complete.

The complainant had no reason to believe that there would be a problem in this regard.

After borrowing it the first time the owner observed the complainant returning the computer the following morning and said nothing.

The complainant took the computer home again the following evening and replied to a text from the owner enquiring as to who had the computer. When the complainant brought the computer back to work the next morning the owner accused him of stealing the machine.

The complainant was then informed by the owner that he was being let go and was given an envelope with money in it. His employment then terminated without notice or fair procedures.

The complainant commenced employment with the respondent on 4 January 2016 prior to which he had his own company supplying services to the respondent and invoicing for same.

The owner arrived in the office early one particular morning and found that the company’s main computer was missing. Later he observed the complainant arriving for work with the computer and challenged him in this regard. The complainant was made aware that he could not remove company property without permission.

The next evening the owner was working late and noticed that the computer was missing. He sent out a text enquiring about it and received a reply from the complainant who said that he had the computer.

The next morning the complainant returned the computer but did not offer any explanation to the owner.   The owner approached the complainant and was informed that the computer was taken in order to write a personal letter. The owner found this explanation to be totally unacceptable and implausible and decided that he had no alternative but to dismiss the complainant. The complainant was paid two weeks’ wages on the day.

The complainant was dismissed because of his totally unacceptable behaviour which showed a complete disrespect for the owner.

Preliminary Issue:

The respondent contended that the complainant was for a number of years an independent contractor who looked after his own tax affairs and who invoiced the respondent for the provision of his services. The respondent accepts that this status changed in January 2016 and that the claim under the Unfair Dismissals Acts is therefore valid.   There is, however, a complaint lodged under the Minimum Notice and Terms of Employment Act, 1973, and, obviously, length of service is pertinent to this complaint.

The evidence on behalf of the respondent was that at the commencement of the relationship the complainant requested that the arrangement between the parties was that he would supply his services and would invoice the company for same and be paid accordingly. Some sample copies of invoices were produced at the hearing. It was also stated that the complainant had his own customers for whom he did designs. The complainant looked after and was responsible for his own tax affairs.   This changed in January 2016 following a request from the complainant’s wife that her husband become an employee.

The complainant stated that at the commencement of employment an annual fee for his services had been agreed and that the arrangement was that he supply invoices on a monthly basis. The complainant in evidence said that he worked 100% for the respondent and never received a payment for any job done on the company premises. Any holidays taken had to be sanctioned by the respondent and the complainant was paid for these holidays and for Public Holidays.   He also was invited to staff social events. The complainant said that he was not aware of the conversation between the owner and his wife until the latter informed him that he would be paid through the books.   There was nothing in writing in regard to the initial arrangement nor was there a contract of employment.  

The Code of Practice for Determining Employment or Self-Employment Status of Individuals sets out the criteria to be considered in determining the employment status of an individual. There are also principles enshrined in various High Court Decisions which dealt with this issue such as Henry Denny & Sons Ireland Ltd. v Minister for Social Welfare and The Minister for Agriculture and Food v John Barry & othrs. In the former case Keane J. stated:

It is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business of his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.

In having regard to this and applying the criteria of the Code of Practice I note the following:

The complainant was under the control of the respondent as regards where when and how the work was carried out.

He supplied labour only.

He received a fixed monthly remuneration.

He did not supply materials or equipment to perform the work.

He was not exposed to personal financial risk nor did he assume any responsibility for investment or management of the business.

He worked for one business.

I also note that that there was no VAT charge on the complainant’s invoices. Finally, there is no written record or agreement relating to the relationship/s that existed between the parties. On the above basis and having regard to the evidence before me I determine that the complainant was an employee of the respondent with effect from 1 March 2007.

Substantive Issues:

The matter leading to the complaints is not in dispute. The complainant took home the main computer from the respondent’s premises on two occasions and this action was the cause of the termination of his employment. There is an important difference however in relation to one issue. The owner gave evidence that he spoke with the complainant the morning after the computer was taken for the first time. The owner told the complainant about the importance of the computer to the business because of the information stored on it and instructed him not to take that computer again as there were laptops available that could produce the documentation that the complainant said he required. The owner was of the opinion that the complainant could not have been in any doubt regarding this instruction. The owner was subsequently working late and required information that was on the main computer, only to discover that the computer was missing and that the complainant had taken it for a second time. These were the reasons why the owner felt that he had no option but to summarily dismiss the complainant.

The complainant’s evidence in this matter was that the owner saw him bringing the computer into work on the first occasion but said nothing and that the conversation about the use of the computer took place on the morning after he had returned the computer on the second occasion. During this confrontation the complainant said that the owner accused him of stealing the computer and finished the conversation by saying that he was being dismissed. The complainant said that the owner then left the room and returned a short time later with an envelope which contained money telling the complainant that this was what was owed to him.

What is clear is that there was a clear lack of any procedures being utilised in the dismissal process. Section 6(7) of the Unfair Dismissal Acts, 1977 – 2015, states:

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 by omission) of the employer in relation to the dismissal…

An employer should have procedures to deal with grievances and disciplinary matters as every employee is entitled to fair procedure in accordance with the precepts of natural justice. These procedures should be fair and rational and in line with the principles contained in the Code of Practice on Grievances and Disciplinary Procedures, (S.I. No. 146/2000). The owner stated that the respondent had procedures but these were not presented at the hearing. I note that the respondent had 10 employees. It was accepted that no statement of employment had been issued to the complainant nor was a staff handbook issued to him setting out disciplinary procedures.

In many situations a person suspected of a breach of discipline will be suspended with full-pay.   This allows time for an investigation, for the employee to be appraised of the complaints they are facing and for notice to be given of a disciplinary hearing. It also allows time for reflection on both sides and advice to be sought if required. In this instance none of the above occurred. Every disciplinary procedure should also include the right of appeal and, again, this was not present in this case. The owner said in evidence that he had not had to dismiss anybody prior to this but this cannot act as justification for a complete lack of procedures in dismissing the complainant.  I find therefore that the complainant was unfairly dismissed.

I must also consider whether there was a contribution on the part of the complainant to the dismissal.   The complainant in evidence accepted that he had never taken equipment home before and was not aware of any other employee doing so. As the computer belonged to the respondent it should have been obvious that permission would be required before it could be taken off the premises, particularly as it was the main computer used in the workplace. In any work environment removing company property without authorisation is considered a serious matter. I therefore find that there was a contribution by the complainant to the dismissal. I accept, of course, that it was always the intention of the complainant to return the computer to the respondent.  On the subject of mitigation, there is an onus on a person who has been dismissed to start seeking employment in order to mitigate their loss.   I note that the complainant stated that although he was dismissed in March 2017 he did not start looking for work until May. He had only succeeded in getting two days’ work since then. I will take both these factors into account in my decision.

Besides the complaint of Unfair Dismissal there are also complaints under the Minimum Notice and Terms of Employment Act, 1973 and the Terms of Employment (Information) Act, 1994.   In relation to the Minimum Notice claim I have decided that the complainant was an employee since March 2007 and note that he received two weeks’ pay on termination of his employment.   Section 4(2) of the Act sets out the minimum period of notice required under the Act and, given that the complainant had completed ten years’ service, he is entitled to six weeks’ pay less the two weeks already received. It was accepted that the respondent did not issue a statement of employment as required by the Terms of Employment (Information) Act.

Complaint No. CA-00010574-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. For the reasons stated above I find this complaint to be well founded and that the complainant was unfairly dismissed. Taking into account the factors such as the complainant’s contribution to the events and his approach to mitigation, I order the respondent to pay to the complainant the sum of €30,000.00 as compensation in this regard.

Complaint No. CA-00010574-002:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. I find this complaint to be well founded and require the respondent to pay the complainant the sum of €3,536.00 as compensation in this regard.

Complaint No. CA-000010574-003:

This is a complaint under the Terms of Employment (Information) Act, 1994. I find this complaint to be well founded and require the respondent to pay to the complainant the sum of €3,000.00 as compensation in this regard.