Complainant

Respondent

Anonymised Parties

Welder

Engineering Company

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-00016107-001

01/12/2017

The complaint is in relation to a decision by the respondent to terminate the employment of the complainant on 28 July 2017. The complainant was employed as a welder by the respondent commencing in February 2006 on a gross wage of €617.76 per week.

On 28 July 2017 the complainant was approached by one of the Directors of the respondent and handed an envelope.

The Director informed the complainant that he was being dismissed and that the envelope contained his P45 form.

The complainant was given half an hour to gather his possessions and leave the premises.

The complainant had lodged a claim regarding an injury at work with the Personal Injuries Assessment Board a short time previously.

The management had received information from another employee that he had been assaulted by the complainant on the company premises in September 2016.

The complainant had previously been spoken to by management regarding his aggressive attitude.

The management were concerned about the safety of other employees and decided to dismiss the complainant.

The management also decided that in order to minimise the chance of disruptive behaviour on the part of the complainant they would inform him of his dismissal just before the premises was due to close for summer holidays.

The dismissal was on the grounds of gross misconduct.

This complaint was heard in conjunction with the complaints under the Minimum Notice and Terms of Employment Act, 1973, and the Redundancy Payments Act, 1967, contained in ADJ-00010206.

The evidence at the hearing was that the Directors had spoken to another member of staff in July 2017 regarding a possible promotion and during those discussions that employee had stated that he had been assaulted in the workplace by the complainant in October 2016. The employee in question had reported the assault to the Gardaí. The Directors were concerned at this revelation. Within the previous two years they had spoken to and warned the complainant in relation to his aggressive behaviour.   They were particularly concerned about the safety of their employees. They decided to make enquiries of the Gardaí as to whether the matter had been reported to them. Having considered the matter further they took a decision to dismiss the complainant on the grounds of gross misconduct. The firm was due to close at the end of the week for summer holidays.   The Directors were worried about the reaction of the complainant in relation to the decision to dismiss and so it was decided to finalise the P45 form and inform him of their decision about half an hour before the closure of the premises.

In the event most of the other employees were sent home early and there was little conversation between the Director who effected the dismissal and the complainant.

The Managing Director in evidence stated that the only previous occasions on which they had terminated anyone’s employment had all been redundancy situations. The letter from the Gardai confirming that an allegation of assault had been made against the complainant was actually received after the dismissal had taken place. The Directors were also unaware until shortly afterwards that the complainant had lodged a claim with the PIAB. No written warnings had been issued to the complainant.

Section 6(1) of the Unfair Dismissals Act, 1977, 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 it.

In dealing with any allegation of misconduct there is an onus on an employer to follow fair procedures before reaching a decision of whether or not to impose a disciplinary sanction. In particular, the employer should have regard to the Code of Practice on Grievance and Disciplinary Procedures as set out in S.I. No. 146 of 2000 and incorporate these principles in a Disciplinary Procedure which is circulated to all staff. In Cummins v Bernard Keane Ltd, UD2000/2011, the EAT found that the claimant had been unfairly dismissed because “there was a total absence of fair process, in circumstances where no evidence was adduced of any fair or reasonable procedures to deal with disciplinary issues leading up to and including the dismissal of the claimant.” The Labour Court in John Casey v A Worker, CD/05/596, stated that “it is not acceptable for the company to send for an individual without indicating the seriousness of the meeting ….. and then to summarily dismiss the person.”

In this case the complainant was not invited to participate in any investigation, was not informed of any disciplinary hearing, was not informed of the allegations against him nor given a chance to prepare a defence in that regard and finally was not given the right to appeal the decision to dismiss.   Instead he was simply presented with a fait accompli and shown the door. As the Labour Court stated this is unacceptable even allowing for the inexperience of the Directors in dealing with such matters. All the more reason indeed for seeking advice before taking any action, particularly as the matter had been unreported for 10 months.

Section 6(7) of the Act 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 omission) of the employer in relation to the dismissal…

Having considered everything I am satisfied that the entire lack of procedures makes the termination of the complainant’s employment an unfair dismissal.

I note, however, that the complainant was successful in finding similar employment from the beginning of September 2017 at a slightly lower rate of pay.

Complaint No. CA_00016107-001:

This is a complaint under the Unfair Dismissals Act, 1977 – 2015. For the reasons stated above I find that the complainant was unfairly dismissed by the respondent. I therefore order the respondent to pay to the complainant the sum of €3,700.00 as compensation in this regard.