Complainant

Respondent

Anonymised Parties

General Operative

Recycling Company

Representatives

Self

Sarah Treacy, Peninsula Group Limited

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-00016749-001

11/01/2018

The complainant was employed as a general operative by the respondent on a full-time basis commencing employment in January 2005. The complainant’s gross pay was €623.29 per week. The respondent operates a scrap metal recycling business. The complainant was dismissed for allegedly attempting to divert business from the respondent to a competitor business.

The respondent accused the complainant of undermining the business by arranging the purchase of scrap metal for another company.

The complainant was suspended from work for a week.

The complainant then got a letter stating that he was dismissed.

The complainant attempted to appeal the dismissal but the respondent did not arrange an appeal hearing.

The complainant made arrangements for a customer to deliver two buses for scrapping to the premises of a competitor.

The respondent only became aware of this when the customer made contact seeking directions to what the customer believed was the respondent’s new location.

The buses were then delivered to the respondent’s premises and the owner questioned the complainant regarding the matter.

The complainant admitted the facts and he was suspended. A meeting with the complainant took place a few days later and he was requested to explain his actions.

The complainant claimed that the owner’s son, who worked in the business, had given him to understand that the customer’s busses were more trouble than they were worth and that was the basis of his actions.

The owner considered this to be gross misconduct and dismissed the complainant. It was accepted that no appeal hearing took place.

The respondent operates a scrap metal and recycling business. In November 2017 there was contact between the complainant and a customer regarding the scrapping of two buses. The complainant stated that the son of one of the owners / directors worked in the business and had remarked that the firm was not interested in buses from that customer as it was not an economically viable proposition to scrap them. The complainant contacted another recycling company and that firm indicated that they would be interested in dealing with the buses provided that the principal director of the respondent indicated that his company did not want the business.   It appears that the complainant proceeded to make arrangements with the customer to deliver the buses to the premises of the other company but it also appears that it was not clarified to the customer that there was another company involved in the matter. The complainant also accepted that he had not discussed the matter with the principal director.

The customer contacted the director on the evening of Friday 24 November 2017 to clarify where the buses were to be delivered and it was at that time that the latter became aware of what had occurred. The customer was directed to deliver the buses to the respondent’s place of business and did so the following day. The complainant was working on the premises on that day until lunchtime. The director approached the complainant in the yard close to finishing time and asked him for an explanation. The complainant explained about his belief that the respondent was not interested in the customer’s business and that he had arranged for delivery to the other company on that basis.

The director met the complainant in the respondent’s car park at starting time on Monday 27 November 2017 and informed him that he was suspended on full pay. On Wednesday the complainant received a text message instructing him to come to a meeting on Thursday 30 November 2017. The meeting was attended by the two directors representing the respondent and the complainant was accompanied by his partner.   The directors asked the complainant for an explanation of his actions and the complainant repeated that he had acted in the belief that the respondent was not interested in dealing with that customer. The complainant was requested to put his explanation in writing for consideration and the meeting terminated. The complainant furnished a short statement by email confirming his understanding with regard to buses from that customer. The complainant also emphasised that no buses had ever gone to the other company. There were no minutes kept of this meeting.

On 4 December 2017 the directors wrote to the complainant informing him that they had decided to terminate his employment with effect from 18 December 2017 stating that “we see these actions as gross misconduct which has caused a serious breach of trust.” The complainant was informed of his right of appeal within two weeks. On 8 December 2017 the complainant wrote appealing his dismissal and requesting copies of his contract of employment, job description and company handbook.   No response was received to this letter and no appeal hearing was ever held.

I note that the complainant, who was with the company for fifteen years, was never issued with a statement of his terms of employment or with any sort of staff handbook setting out a disciplinary procedure.

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 the dismissal.

Section 6(4) of the Act states:

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 his employer to do,

(b)    the conduct of the employee…

By his own account and according to the letter from the other recycling company which the complainant provided in his submission, any involvement by that company with the customer was subject to confirmation by the principal director that the respondent company was not interested in dealing with that customer. The complainant accepted that he never spoke to that director in that regard. There therefore was no basis for the complainant making arrangements for the buses to be delivered to the other company’s premises. Indeed, the complainant did not clarify this issue to the customer concerned as that customer believed that they were dealing with the respondent. The complainant was guilty of attempting to divert business from his employer to a competitor company.

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…

The Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000) sets out general guidelines for the application of grievance and disciplinary procedures.   Paragraph 4.1 states that the essential elements of any procedure dealing with these issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available. Other sections deal with the requirement that procedures must comply with the general principles of natural justice and fair procedures.   As noted earlier there was no staff handbook which laid out the procedures to be followed and which defined what constituted gross misconduct or the range of penalties to be applied. The principal director involved himself in both the investigatory and disciplinary processes (such as they were).   The complainant was not advised in writing of the precise charges against him, of his right of representation nor of the possible disciplinary outcome. Finally, although invited to institute an appeal, no appeal hearing was conducted when the complainant exercised that option. Having regard to all these circumstances I find that the process used in effecting the dismissal was seriously flawed.

In summary therefore, I find that the dismissal was an unfair dismissal but that the behaviour of the complainant contributed significantly to the decision to dismiss.

Section 7(2) of the Act requires that, in determining the amount of compensation payable, regard must be had to the extent to which any financial loss was attributable to the actions / conduct of both employer and employee and the measures adopted by the employee to mitigate that loss.

As regards mitigation the evidence of the complainant was that he commenced seeking employment in February 2018 and that he had got part-time employment with a named employer working 1 to 2 days per week for €100.00 per day gross.

For the reasons outlined above I find that the dismissal was an unfair dismissal according to the provisions of the Act in that the procedures used to effect the dismissal were seriously flawed. I also find that the conduct of the complainant significantly contributed to the dismissal. Taking all factors into consideration, I order the respondent to pay to the complainant the sum of €4,500.00 as compensation in this regard.