Complainant

Respondent

Anonymised Parties

A Vice President, Engineering

A Broadband provider

Representatives

None

McInnes Dunne Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00000503-001

28 October 2015

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

CA-00008929-001

23 December 2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00000503-004

28 October 2015

The complainant asserts that he was unfairly dismissed and claims outstanding annual leave and expenses. The respondent denies the claims.

In submissions, the respondent outlined that the complainant’s primary function was the design of a power and data management system (PXU), which allowed power to units to be remotely switched on and off. This was manufactured by a third party and in widespread use in the US. It was well known that the boxes were unreliable and the PXU project was intended to replace this equipment. The complainant did not meet deadlines for this project. This matter was subject to a disciplinary investigation by the Director and a subsequent disciplinary hearing, chaired by the Vice President. The letter of the 15th April 2015 set out three allegations: the failure to provide the respondent with boards and schematics; the removal of a desk top computer and attending the workplace while on sick leave. There were two disciplinary hearings. The respondent concluded that the complainant’s behaviour, and his disregard for management instructions, amounted to misconduct, justifying his dismissal with notice. The complainant’s appeal was heard by the Chief Finance Officer, who upheld the dismissal.

In respect of the complaint made pursuant to the Organisation of Working Time Act, the respondent submits that the claim for annual leave is statute barred, in circumstances where the initial complaint had sought investigation, rather than adjudication. It submits that there is no reasonable cause for extending time. This complaint was made on the 17th February 2016, more than six months after the end of the complainant’s employment. It further submits that the complaint is without merit. It was clear that the maximum number of days an employee could carry over was five days and the complainant was paid his annual leave entitlement following the end of his employment. It submits that the complainant’s claim for expenses and the return or replacement of certain items do not fall within the Organisation of Working Time Act.

The respondent asserted that the disciplinary process was not initiated because of the the complainant’s email of the 3rd April 2015. It did not accept that this email amounted to a protected disclosure. The complainant had not referred to this issue as a protected disclosure during the disciplinary process, even though the subject matter was discussed. In this case, what the complainant characterised as a protected disclosure was a matter that had long been a discussion point in the respondent. The respondent submitted that even if this was a protected disclosure, the complainant’s dismissal was not wholly or mainly a result of this. It refers to the reasons for dismissal set out in the Vice President’s email of the 30th April 2015. It submits that the complainant’s email of 3rd April 2015 was an “act of distraction”.

The respondent referred to the series of emails exchanged by the complainant and the Chief Executive in March and April 2015. On the 31st March 2015, the Chief Executive raised issues with the complainant regarding the Californian facility and the need to back-up his work. The complainant had possession of valuable company property and was asked to back-up data. Instead, he returned to Ireland with this property, in defiance of a respondent instruction. The complainant was then on sick leave, but had attended the Irish office over the weekend. This was an issue of trust and the complainant had only agreed to return anything when he was summonsed to a disciplinary meeting. It submitted that no employee had discretion to refuse a reasonable direction of their employer. The complainant, a senior manager, thought that he did not have to comply with an instruction. This undermined trust and confidence in a senior employee engaged on a significant project for the respondent. It was only after the complainant returned the equipment that the respondent could ascertain the state of play of the project. They then realised that the project was nowhere near as advanced as stated by the complainant. There was a wilful lack of disclosure by the complainant and he had not told the respondent of the true state of play. He did not apologise and made no attempt to explain himself.

In respect of the statement of losses claimed by the complainant, the respondent submitted that the complainant’s salary had been €72,000 per year but he had no agreed entitlement to an additional housing allowance. The respondent denied that the email from the Chief Finance Officer of the 7th May 2015 amounted to an undertaking to pay private housing costs in Ireland. While the respondent paid the expenses claimed by the complainant, for example in March 2015, this did not mean that the complainant was entitled to a housing allowance. It commented that his next role commenced in September 2015 and he had left this role. Any loss that came after the complainant leaving this role was too remote.

The Vice-President gave evidence. He said that the complainant reported to the Chief Executive and had been asked to design the PXU. There were issues with off-the-shelf alternatives and the equipment then used by the respondent. They wanted to develop the respondent’s own PXU-UPS system. The complainant and the Chief Executive agreed objectives in December 2014, which included the delivery of the PXU system by Quarter 1 2015. In March 2015, the respondent became concerned that targets were not being met and the Chief Executive asked for the boards and back-ups to be left in California. The complainant, however, returned to Ireland and took the equipment without the respondent’s knowledge. He said that this could have brought down the whole company. The complainant then took a computer from the Irish office. It was obvious on the 17th April 2015 that the board would not work and was incomplete.

The board assembled by the complainant was referred for analysis to the respondent Chief Technology Officer. The respondent then had to start from scratch and the complainant’s work went down the drain. This was a huge financial failure for the respondent. The respondent had ben flabbergasted at the lack of progress. They were far from having a prototype and being able to carry out trials. The respondent was aware of the difficulties with the equipment they currently used. The quality was not good and they used this equipment until there was a replacement available. The issue with this equipment did not represent a health and safety issue. The complainant never referred to this as a protected disclosure during the disciplinary hearings.

In cross-examination, it was put to the Vice President that there were 500 units in the field and the respondent continued to install new units; he replied that he did not know. He also did not know that the equipment did not meet one of 17 safety standards. It was put to the Vice President that the respondent should not have been using this equipment at all.

In evidence, the Director confirmed that it was her signature on the red note book provided by the complainant. She said that she could not recall any conversation regarding the end of the complainant’s employment.

In closing comments, the respondent submitted that the complainant had been found to be untruthful in respect of the notebook. This fact should place doubt on his credibility. The respondent submitted that the complaint made pursuant to the Organisation of Working Time Act was statute barred and had been dealt with by the inspectorate services of the Workplace Relations Commission. Expenses were not covered by the Organisation of Working Time Act. The complainant made a further complaint pursuant to the Unfair Dismissals Act (reference CA-00008929). It was not the case that the complainant had made a protected disclosure. The issue he identified in emails to the respondent was a longstanding issue. The complainant’s dismissal had not been wholly or mainly because of this issue and the letter of dismissal set out the reasons for his dismissal. This was because of the complainant’s wilful refusal to follow lawful instructions, which he chose to ignore. The complainant said that other issues took priority, but did not comply with the instruction on his return to Ireland. He did not return company property until the first disciplinary hearing. The complainant had failed to progress the PXU issue and this was why he failed to return the property to the company. The respondent submitted that it was the only proper respondent to the complaint and there was no basis for complaints against the other company or the individual directors. The respondent submitted that the complainant’s allegations relating to governance were not made out as the respondent had authorised the Vice President to make the decision of dismissal. The respondent submitted that the dismissal was fair as the complainant had disobeyed an instruction and had not complied with instructions regarding the PXU development. It submitted that the Vice President was independent. The respondent states that the date of contravention in respect of section 14 of the Unfair Dismissals Act is the date of dismissal and not a later date of request.

The complainant made detailed written submissions to the adjudication. He outlined that he was involved in the respondent’s research and development activities, for example the design of ironmongery. He continued to work on the development of an Uninterruptible Power Supply and that it had been a concern he raised in an email of the 3rd April 2015 that led to his dismissal. In this email, he raised the continued use by the respondent of a named UPS. He outlines that he did not have the respondent’s disciplinary policy when summonsed to a disciplinary hearing. He challenged why issues were raised at the first meeting that were not contained in the disciplinary invitation letter. He was badgered to answer questions that he was not prepared for. He had been questioned by everyone present at the meeting, including the Director, who attended as note-taker.

In an email of the 2nd April 2015, the complainant refers to health and safety issues he has reported on several occasions. He says that the issues raised by the respondent regarding back-ups and the boards are not fair and reasonable. The complainant exhibits an engineering directive of the 10th March 2015 regarding equipment field failures. In an email of the 17th February 2015, the complainant raises how he was treated by the Chief Executive in trying to raise issues regarding the selection of technology.

The complainant’s colleague gave evidence. Her role was that of office manager. She commented that the complainant was based in a room to the back of the Irish office, beyond the open plan section. He did not share the room with anyone else. The complainant had been working on hardware and this was different to the work done by others in the office, who were data analysts and software developers for an associated company. In cross-examination, the colleague confirmed sending the email of the 1st April 2014 to staff, which attached the staff handbook. While the document referred to one company, some of the circulation list were employees of the respondent. The handbook applied to everyone on the circulation list. While there were two versions of the handbook, the only difference was the company named on the document. The email of the 1st April 2014 was sent to generate discussion. The colleague could not say whether the complainant had signed to acknowledge receipt of the handbook. She would be disappointed if he had not received the document and he could have been in the United States when the document was circulated.

In respect of the Organisation of Working Time claims, the complainant said that the respondent had not maintained records and he was asked to keep records. He was also owed money for equipment and travel expenses. He said that his gross monthly pay was €6,041.67 and that he was also entitled to a monthly housing allowance of €1,000. This had been verbally agreed with the Chief Executive, who had no objection to paying a housing allowance. There was also an agreement to pay travel costs, reached towards the end of 2014. The complainant submitted expenses claims, including for his housing costs and they were paid when he provided receipts. It was agreed that the respondent would pay about €1,000 per month. The complainant was owed outstanding expenses of €3,000 or so at the end of his employment.

The complainant submitted that his contract of employment was terminated in response to the issues he raised in his email of the 3rd April 2015 regarding the electrical equipment used by the respondent in the United States. He said that the respondent was only doing 40 units a quarter, and not 40 units a month. Employees were using their own money for expenses, thereby subsidising the company. The respondent initially paid expenses quickly, but there were later delays. The complainant said he never saw an expenses policy.

The complainant outlined that the design produced by a named colleague did not comply with local US standards as well as their health and safety codes. There were specific breaches of Californian rules regarding the use of licensed electrical contractors and equipment. The respondent had known since May 2013 that the items used were not approved. The complainant referred to one item where the approval marks did not include any of the 17 bodies able to approve such items in California and the US. When he raised the issue, the respondent stated that it would replace the PXU design and it had partially been the complainant’s role to address this issue. This was supervised by a named colleague and it was his responsibility to ensure that the equipment was safe.

The complainant said that there were also problems with the radio installations, which did not comply with regulations as all exposed metal parts were not grounded. He had observed this at a stated US location and reported the issued to the Chief Executive in 2013. The complainant commented that he had 38 years’ experience in product safety. The respondent had told him to get on with the design, but continued to use the faulty equipment. The complainant had brought issues to the respondent’s attention about another item and told a colleague that the equipment was not approved, after this colleague had sent him a photograph of the item. The complainant said that by the time he left the respondent’s employment, it had 500 units in the field. Many were difficult to access so it would be challenging to address the issues arising. One could only do three or four units in a day.

The complainant said that at the time he had been asked to redesign the PXU, he was also asked to manage a new facility in California. He was tasked with establishing production at the light industrial unit, with adjacent offices. The site hosted six sales staff and manufactured a piece of ironmongery used to hold antennae. He produced design work at the facility, for example roof mounts and roof racks for specialist installers. There was an incident in northern California where there was an outage and antennae fell to the ground. He visited the site and sent the respondent photographs of the damage. The respondent had overloaded the structure with additional antennae, causing it to fall. The equipment was defective and a non-licensed installer was used. The respondent quizzed him about the incident and he supplied what information he could, although he was not a licensed engineer in California. This affected customers as they lost internet and the Chief Executive had smoothed things over by visiting them. The complainant said that he dialled into the February 2015 management meeting and raised the issue of the insurance policy being invalid because of the excessive load on the antennae. He was shouted down for making the point. The Chief Executive said that the complainant would be put “on mute”. The complainant was surprised at this. He became aware that the line was still live and heard the Chief Executive say “f*cking idiot” to a colleague. He said that from then on, he was not flavour of the month.

The complainant said that on the 18th March 2015, he took photographs of the warehouse, identifying health and safety issues. The most significant issues were the exposed power source and the forklift being used by an unlicensed driver without personal protective equipment. He was not given the authority to make the workplace safe. He took photographs which featured the Vice President so that the respondent could not take issue with them.

The complainant said that he proposed a design of the new PXU and sent the information to the Chief Executive. While he was told to concentrate on the PXU design, he was still managing the facility. He was not given a deadline for the PXU. The respondent faced design and manufacturing difficulties with this work and as of the 18th March 2015, they were not aware what the design issue was. The complainant was then spending 50% of his time on the PXU. He was also getting faulty units back to ensure that they did not repeat the same mistake. One such consignment was sent to him on the 31st March 2015 and left for him in the warehouse. He had not identified the design issue by the time he left the respondent. At the behest of local personnel, he dealt with issues arising from three sites in Los Angeles. At this time, he sustained both an eye and back injury and could not use a microscope. He could not then work on the PXU issue.

The complainant said that he had been asked to back up the project but there were a “helter skelter” of PPE issues at this time. He backed up the material on a server in California. He tried to back it up on a USB but could not do so. The respondent did not have a data security policy and there was no precedent for having to back up material before travel. Backing up was not a higher priority than the electrical safety work.

The complainant said that he had a sick certificate for Easter week 2015 because of back pain. He set up his equipment in his shed and went to the office to pick up his computer. He had not been to the office for nine weeks so did not want to attend during the day. He was a keyholder and worked on his own. There had never been a problem with him attending the office in the evenings. He emailed the Chief Executive, but did not receive a response. He received complimentary emails from the new facility manager to say that it had been nice working with the complainant. He then received the invitation to the disciplinary meeting. He provided the Chief Executive with a progress report on the 14th April 2015 regarding the PXU and explained the problem with the laptop and the back-up. He replied to the disciplinary invitation and explained that he was working from home. He said that he required 24-hour access to his workspace and gave an update regarding the PXU. He offered to return the design and the equipment.

The complainant said that the Director had informed him prior to the 14th April 2015 that he would be getting his P45 and annual leave for the year. He referred to the handwritten note to this effect. He was carrying the red note book at the time he spoke with the Director and asked her to sign it. The second handwritten note was dated that 6th May as this was the date the complainant returned the computer.

The complainant outlined that he was not provided with details of all the charges prior to the disciplinary meetings. There should also have been an independent investigation. In this case, the Chief Executive had been the investigator and the decision-maker. The disciplinary meetings had been lengthy with the second meeting lasting for 90 minutes. He felt pressurised and had needed a break. He was asked about many issues at the second meeting and it took a broader focus. He challenged this broad approach in an email to the Vice President. At the meeting, he explained the nature of his design work and the mechanical engineering task. The respondent did not appreciate what he had been doing in California. He asked the Vice President for a job description but was not given one. It was unfair for the respondent to raise new issues. This looked staged as the investigation should be completed prior to the commencement of the disciplinary hearing.

Commenting on the letter of the 30th April 2015, the complainant said that this dealt with three issues and made six or so findings. He was not given an opportunity to reply to these points. He had never been asked to produce a “project plan” and had not agreed any “agreed objectives”, as stated in the letter. The complainant provided accurate information to the respondent about the PXU work. He commented that the fifth point in the letter was a melodrama. There was no detail provided of financial risk and cost.

In respect of the appeal, he said that it was wrong to bring in new issues to the process. He raised the electrical safety issues but they were not taken into account. The complainant spoke with the appeal manager after the hearing who said that is was “out on one, out on all”. He was, therefore, not surprised to receive the appeal outcome. He commented that there was material not provided to him following his data access request to the respondent.

The complainant said that his effective date of termination was the 31st May 2015. It was a difficult market with few VP roles in engineering. He had been prepared to drop to a lower role. He availed of a European network and LinkedIn and pursued various positions. He secured a position with a previous employer and this took 12 weeks to arrange. He earned €40,000 and the role ended after a year, because they did not have enough hardware work. The complainant said that he was re-employed by the previous employer on the 15th December 2016 for a contract until the 15th January 2017, which was then extended for two weeks. He was paid pro rata for the six weeks according to an annual salary of €55,600.

On the third day of adjudication, the complainant submitted that the respondent to this complaint and another company were not sister companies, as advanced by the respondent. This was because they were not owned by the same parent. The accounts of the so-called sister company do not contain the debts of the respondent and other associated companies. He outlined that the tax authorities had recovered a debt from the respondent which was due by the so-called sister company and this was a fiduciary breach. The complainant submitted that his contract of employment named the respondent as his employer, but he did work for all the companies. He stated that the respondent employed five people and not the 15 employees claimed. He said that the Chief Executive is not a director of the respondent, so he could not have reported to him. The Vice President was also not a company director and had no role with the respondent. The complainant outlined that gross misconduct only occurs if acted upon immediately; an employer cannot accumulate grounds as they did in this case. He outlined that there should have been an investigation prior to the disciplinary process and in this case, the Vice President had been judge, jury and executioner.

In cross-examination, it was put to the complainant that the handwritten note was made by the Director on the 7th May 2015 and not the 17th April 2015 as he had claimed; the complainant replied that the first page of handwritten notes relates to the first meeting and the second page to a second meeting. It was put to the complainant that his letter of the 7th May 2015 refers to the handwritten notes and that the letter was consistent with the notes. It was put to the complainant that the letter of the 7th May 2015 confirmed the sequence of events, i.e. that the handwritten note was made the day before the letter and not on the 17th April 2015, before the start of the disciplinary process. The complainant replied that the first page was a handwritten note of the 6th May 2015 and the second was of the 13th May 2015. He confirmed that the disciplinary hearings took place on the 17th and 23rd April 2015. It was put to the complainant that the handwritten notes were made after his dismissal; he replied that the note referred to an earlier conversation, prior to the 17th April 2015. It was put to the complainant that this conversation of the 17th April 2015 had not been mentioned prior to the adjudication hearing, i.e. in the complaint form and in submissions; he agreed and maintained that this conversation took place.

In respect of the identity of the respondent, the complainant said that he did not accept that the six other respondents were not his employer. He worked for them. It was put to the complainant that his pay slips and contract named this respondent as his employer; he replied that he had been paid by a different entity while working as a consultant and his pay slips stated this respondent as the employer. He was entitled to take cases against individual directors. It was put to the complainant that the email to the Chief Executive of the 13th January 2015 set out dates for work to be delivered on the PXU project and these dates were not met; he agreed and said that the dates were not met for several reasons and they were only target dates. It was put to the complainant that it was clear from email exchange of early March 2015 that the work on the PXU was the first priority for the respondent; he agreed and the Chief Executive had previously stated this to him. There were other priorities so the complainant did not address the PXU issue. The Chief Executive’s request had not been fair or reasonable. It was put to the complainant that the second ground set out in the letter of dismissal of the 30th April 2015 related to the false or misleading information provided by the complainant; he replied that he had not said in 2014 that he had completed all the boards and did not recall saying that he had done all the board designs at a named hotel. The complainant said that he did not recall seeing an email of the 16th March 2015 from the Chief Executive and that they had met on the 17th or 18th March and discussed the PXU issue.

It was put to the complainant that the respondent had required him to provide PXU boards and schematics; he replied that this was not a reasonable request so he did not comply with it. He considered this to be a request and not a direction. While the Chief Executive was entitled to give him instructions, this was not fair or reasonable as he was dealing with the health and safety issue. The complainant stated that the boards were the respondent’s property and he decided that the health and safety issue was more of a priority, despite being told that someone else would address this. The complainant accepted that he returned the boards at the meeting of the 17th April 2015 and not beforehand. It was put to the complainant that the email from the Chief Executive of the 3rd April 2015 gave him a clear set of instructions; he recalled receiving this email and accepted that he had not complied with them until summonsed to the disciplinary meeting. He said that there had been a live health and safety issue. The complainant confirmed that he returned to Ireland on the 5th April 2015 or so and attended the doctor on the 7th April 2015. He had a back spasm and submitted a sick certificate for a period of a week. He attended the workplace on the 6th April 2015 and took his PC. His work had been backed up in California.

It was put to the complainant that he had not raised the health and safety issue and his protected disclosure at the disciplinary hearing and he had not used the specific words “protected disclosure”; he replied that he had raised the issue in the disciplinary process and did not think that he used the words “protected disclosure”. It was put to the complainant that there had always been issues with the original board provider; he agreed and the PXU project was intended to replace this. It was put to the complainant that the original boards were widespread in the US, including used by US state agencies; he agreed that this was what the publicity stated. The respondent had deployed between 500 and 1,000 of these units in the field and they failed on a regular basis. They should not have been deployed as they did not meet requirements. They were a safety hazard, so it was not fair or reasonable to wait until the PXU project was completed. He agreed that the incident of the 3rd April 2015 had been the latest example of this unreliability and there had also been toxic smoke from the fire on the top of the hotel. It was put to the complainant that this board provider did not need to be certified and referred to a certificate of compliance; he replied that the assembly of parts also needed to be certified as well as the parts themselves.

It was put to the complainant that the letter of dismissal complied with section 14 of the Unfair Dismissals Act in giving reasons for the dismissal; he replied that he had requested a statement in accordance with section 14 and this was not provided. He did not accept that the letter of the 30th April 2015 complied. In respect of mitigation, the complainant said that he finished with a named employer on the 16th March 2017 and he was now unemployed. He had applied for more than 50 jobs and had not limited his efforts to seek employment because of childcare commitments.

In closing comments, the complainant outlined that he was entitled to pursue the complaint against all respondents. His contract was with this respondent and he had also done work for another named company. The Vice President was not authorised to carry out the disciplinary process. The respondent should have arranged for an independent party to carry out this process. The Vice President was not a company director and not his employer. The complainant said that they had been dealing with health and safety issues and this represented a protected disclosure. He submitted that the letter from the original board provider represented self-certification and this was against the law. The complainant submitted that the respondent had not maintained the records required by the Organisation of Working Time Act. He lost annual leave as it was not carried over from one other related employer to the respondent. This complaint was not statute barred and the respondent was obliged to keep records. The complainant submitted that he was entitled to fairness and due process. The Vice President had investigated the issue and terminated his employment. Given that the Chief Executive and Vice President were brothers, someone independent should have been appointed to carry out the disciplinary process. There was an assumption that the brothers were always right. He said that the process was rigged and anything he did would not have changed the outcome. The respondent had not produced evidence of the value of the PXU or why they had to do it all again. Their accounts assigned a value of €925,000 to the boards. The separate complaint referred in December 2016 related to the failure to provide a statement pursuant to section 14 of the Unfair Dismissals Act. The date of contravention for this is December 2016, the time of the request.

CA-00000503-001 Complaint pursuant to the Unfair Dismissals Act

In the letter of offer of the 18th December 2013, the respondent sets out the terms of the complainant’s employment. It states that the complainant’s role is VP Engineering and the basic gross salary was €72,500. It provides 20 days paid time off per year. By letter of the 15th April 2015, the Director invokes the disciplinary policy and places the complainant on paid suspension. It sets out three allegations and states that they, potentially, constitute gross misconduct. The complainant replies on the 16th April 2015 to say that he is astounded with the allegations. He attaches his status update of the 4th April 2015, addressed to the Chief Executive. The respondent exhibits notes of the disciplinary meeting of the 17th April 2015 and a summary of the second meeting of the 23rd April 2015. The complainant emails the respondent on the 24th April 2015 regarding items raised at the second meeting. In an email of this date, the Vice President asked the complainant to hand over journals and notes.

In the letter of the 30th April 2015, the respondent makes findings on the issues raised in the disciplinary meetings. It finds that the complainant failed to comply with direct instructions and did not account for the whereabouts of company property. The Vice President concludes that the respondent cannot be expected to continue to employ a senior employee who refuses to comply with direct reasonable instructions and that this constitutes gross misconduct. In an appeal of the 5th May 2015, the complainant challenges the decision to dismiss him on the basis that the issues raised at the two meetings do not amount to misconduct or gross misconduct and that no notice had been given of the issues raised in the second meeting. The appeal was heard by the Chief Finance Officer on the 19th May 2015. On the 30th May 2015, the Chief Finance Officer upheld the complainant’s dismissal. This addressed the procedural issues raised by the complainant and concludes that the respondent’s decision was justified.

In a letter to the Director of the 7th May 2015, the complainant sets out that he is owed expenses of €9,601.01. He states that the respondent was obliged to keep records for three years and he could not recall taking annual leave in 2013, 2014 and 2015. On the 8th May 2015, the Director emailed the complainant to say that he would be paid for 6.67 days of annual leave and the May public holiday. The email further states that untaken leave is forfeited unless carry-over is agreed.

In addressing the substance of the complaints, there are three issues to determine. The first relates to whether the Director informed the complainant he was to be dismissed before the disciplinary process concluded. The second is whether the complainant made a protected disclosure and the role this played in the disciplinary process and outcome. The third issue is whether the respondent has dislodged the statutory presumption that the dismissal was unfair.

In respect of the first issue, the handwritten note states as follows: “[Name] deals with expenses / scan send to [name] / pass on comments / P45 before the end of next week / due month notice / calendar year to date / Jan to May hols / [illegible] status of holiday [illegible] and impact on P45.” The second page lists the items returned by the complainant, such as a lap top. The complainant remembered that the Director had inscribed her notes on the first page during the disciplinary process. It was submitted that the disciplinary process and his dismissal were prejudged. In my view, it is clear from the evidence adduced in evidence and cross-examination that the Director wrote the handwritten note in or around the 7th May 2015. The note confirmed what was to happen now that the respondent had dismissed the complainant. It was not a sign of pre-determination on the part of the respondent.

In respect of the second issue, it is clear that the development of a new PXU unit was a priority for the respondent. There were longstanding issues with the technology it used. It is also apparent that the development of an alternative was not a straightforward job. The complainant submitted that his email of the 3rd April 2015 led to the disciplinary process and his dismissal. This emphasis on the email of the 3rd April 2015 does not tally with the other evidence, for example where the complainant referred to Chief Executive cursing about the complainant in the margins of an earlier teleconference phone call. It is clear from the pattern of emails exchanged by respondent senior managers and the complainant that there was a deteriorating relationship between them. I note the Chief Executive’s email of the 2nd April 2015 sets out curt instructions to the complainant or he would take “further action”. I also note that the issues raised in the email of the 3rd April 2015 were already well signalled, for example in the complainant’s Engineering Directive of the 10th March 2015. Given these factors, it is not possible to conclude that the complainant’s later dismissal was wholly or mainly due to the email of the 3rd April 2015.

In respect of the third issue, it is for the respondent to show that the dismissal was not unfair. The respondent must show that the dismissal was both procedurally and substantively fair. In assessing the fairness of the dismissal, I note the ongoing emails to the complainant about the need to progress the development of the PXU. I note that this priority was clearly enunciated in emails in late 2014 and early 2015, for example in the complainant’s work plan email of the 13th January 2015. The respondent placed great emphasis on obtaining accurate information on the progress of the PXU project and in making progress on the project. It instigated the disciplinary process on the 15th April 2015 as prototypes, schematics and hard drives had not been returned to the company. They were returned at the meeting of the 17th April 2015. A second meeting was held on the 23rd April 2015, following which the letter of dismissal issued on the 30th April 2015. Given the priority of the PXU project and the seniority of the complainant, I find that the respondent’s conclusion that the complainant disregarded instructions issued to him by the respondent was within the reasonable band of findings for the respondent to make. The dismissal was, therefore, substantively fair.

There are two procedural issues to address. The first is that two significant players on the respondent side – the Vice President and the Chief Executive - are brothers. Such a familial link is, of course, a factor in assessing the unfairness of a dismissal. In this case, there is nothing to suggest that this familial link tainted the process or generated an unfairness for the complainant. The second issue relates to what might be described as the staggered nature of the disciplinary process: the issues central to the second disciplinary meeting were not set out in the disciplinary invitation and nor specifically discussed at the first meeting. This does not taint the process. First, the issues raised at the second meeting cannot have been a surprise. They were the same broad issues raised in the email correspondence of late 2014 and early 2015. The precise findings made following the second meeting were only possible once the respondent had in its possession the items returned by the complainant. Such findings were, therefore, only possible at the second meeting stage and the process leading to dismissal is not tainted because of this.

Taking these findings together, I find that the complaint of unfair dismissal is not well founded.

CA-00008929-001 Complaint made pursuant to the Unfair Dismissals Act

This is a complaint, dated the 23rd December 2016, made pursuant to the Unfair Dismissals Act. The complainant outlines that on the 28th September 2016 he served notice on the respondent’s solicitor to provide a statement pursuant to section 14(4) of the Unfair Dismissals Act. This request related to the dismissal which took effect on the 31st May 2015. The respondent submits that the letter of dismissal informed the complainant of the reasons for his dismissal.

I find that this complaint is not well founded. A breach of section 14(4) is not actionable; redress for any breach of this provision cannot be made under section 8 of the Act.

CA-00000503-004 Complaint pursuant to the Organisation of Working Time Act

This is a complaint made pursuant to the Organisation of Working Time Act. The first element of the complaint relates to expenses. This is not well founded as expenses are not recoverable pursuant to this Act. The second element relates to annual leave the complainant asserts that he was owed as of the end of his employment on the 31st May 2015.

The complaint was made on the 28th October 2015 and therefore can only include annual leave arising in the leave year of the 1st April 2015 to the 31st March 2016. The complainant was paid cesser pay for this annual leave. Any claim for preceding leave years is out of time. I find that this complaint is not well founded as it is out of time.

CA-00000503-001

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.

CA-00008929-001

For the reason set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.

CA-00000503-004

This complaint pursuant to the Organisation of Working Time Act is not well founded as the complainant was paid the annual leave owed to him in the relevant leave year and the complaint is out of time for preceding leave years.

Unfair Dismissals Act

Reasonable band of responses

Section 14(4) particulars in writing / not actionable

Organisation of Working Time Act / limitation period