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-00015744-001

13/11/2017

The Claimant was employed as a Crew Member of a Fit Out company from 28th March 2016 to 7th July 2017. He as paid €525.00 per week. He has claimed that he was unfairly dismissed and has sought compensation.

The Complainant was issued with a Verbal Warning on 13th April 2017. The incident concerned his insistence on taking the next day off without notice and his indifference to the operational planning issues that it would cause. On 19th April 2017 he received a Written Warning for his failure to report for his scheduled shift the day before. On 3rd May 2017 he crashed a van into the shutter of the Head Office and proceeded to drive off without reporting the incident. The cost of the damage was €280.00. When questioned he was ignorant and evasive and blamed others. He was issued with a Verbal Warning. A further Verbal Warning was issued on 23rd May 2017. This was in respect of speeding which elicited a complaint from the public. He refused to accept responsibility. A further Verbal Warning was issued on 17th June 2017 for arriving one hour late and leaving two hours early and telling the store manager untruths. Another Verbal Warning was issued on 22nd June 2017. A serious incident occurred on 30th June 2017 in which he was aggressive and confrontational with a third-party foreman. On 3rd July 2017 he attended work at the Respondent’s premises despite being instructed to go to Sandymount. On 4th July he again attended at the Head Office and not Sandymount as instructed. When asked by his Supervisor why he was in Head Office, not Sandymount he replied that he worked in the Head Office site. He became aggressive and confrontational and told the Supervisor “you have no authority to tell me what to do”. The Supervisor had to ask him three times to get up and work. He was part of a two-man team. If he did not attend at work the other person became idle. His refusal to go to Sandymount led to his suspension with full pay. He was invited to a disciplinary hearing on 7th July 2017. He didn’t ask and was not offered representation. This led to his dismissal. They looked at alternatives to dismissal but they were not convinced that he would change. The contract of employment provides for suspension with pay. He was not summarily dismissed, he received minimum notice. The dismissal was not unfair and proper procedures were followed. Their representative stated that this was a small company with no formal HR department. The company was misguided in some ways. The letter of 19th April 2017 was clear, it stated, “However, please note that if you engage in further misconduct of any kind, you may be subject to more severe discipline, up to and including suspensions and dismissal”. The contract of employment provides for representation “if you so wish” He never asked for representation. There were substantial grounds for dismissal. The dismissal was not unfair. The Adjudication Officer can take into account the Complainant’s contribution to the dismissal up to 100 %.

When the Complainant was dismissed on 7th July 2017 he had received a second written warning,          a final written warning and a letter of dismissal concurrently that day. This is in total contravention of the rules of natural justice and is contrary to the Respondent’s own disciplinary system as provided for in their contract of employment. At the date of his dismissal he had one written warning on his file. His behaviour which was the subject of a disciplinary hearing did not constitute gross misconduct. The letter of dismissal relied upon five verbal warnings. He never received these warnings. There is no letter inviting him to a disciplinary meeting. He had not signed for any of these. On some but not all of these the manager spoke to him These were informal rebukes. They do not constitute a formal warning. The purpose of warnings is to alert an employee that their job is in jeopardy. In this case he was unaware that his job was in danger. He was not given the right to appeal the dismissal. The contract of employment sets out the disciplinary procedure but the Respondent did not follow it.

1)13th April 2016

He stated that he has no recollection of that incident.

2)19th April 2016

He had a high temperature and slept to 3.00pm. He awoke at 8.00am and thought about phoning the Company but he felt that he needed another hour. He was awoken by the company ‘phoning him. The Respondent did not follow procedures. He accepts that he received a written warning.

3) Shutter crash 3rd May 2017

He accepts that he accidently drove into the shutter. He didn’t deny hitting it. His manager saw the incident. His manager did not look for money for it. A ‘phone call took place, not a face to face meeting and no formal procedures were invoked. He apologised for the incident.

4) Speeding

He accepted that he was speeding. He was only going 6 to 12 kms over the limit. No procedures were followed. He undertook not to go over the limit again.

5) 17th June 20107

He accepts that he left an hour early. He had asked for diesel for work travel but it was refused. He took the hour off instead. He had no meeting about this. No warning was issued to him.

6) 22nd June 2017

He stated that he was waiting for a colleague to make a delivery. He denied that his manager had to ask him three times to get up and work. No formal procedures were used.

7) 30th June 2017

It was the site foremen that spoke aggressively to him , not vice versa, also he called him racist. He denied being aggressive to the foreman. His manager told him to accept the behaviour of the foreman as this was the way in construction site. He denied calling him a derogatory name.

8) 3rd /4th July 2017

The Complainant stated that he been paid for diesel in the past. At the end of June the Respondent told him that he would not be paid for diesel. The Complainant told the Respondent that he would not use his car for going out on sites and that he would go to his base and get a lift. He could not afford to use his own car for work. He was sent home for that.

He was suspended because he would not use his car to go to Sandymount.

He was called to a meeting on 7th July and he was handed two action plans, one to correct an improve his performance, the other for failing to arrive at a work designation. He was also issued with a letter of dismissal in the same meeting. The dismissal letter was prepared in advance of the meeting. He was not given the right of appeal.

He has explained all the incidents. He was not becoming unmanageable. The Respondent did not deal with the incidents correctly and no proper procedures were followed.

Substantive matters

I note that the conflict of evidence in this case.

I note that the Respondent has referred to a number of incidents in this employment which they allege that resulted in disciplinary action. This is disputed by the Complainant.

I find that there were a number of serious matters that arose as follows, crashing into a shutter, speeding offence, insubordination in not attending at designated places of work, not carrying out management’s instructions, lateness, leaving work early without permission and the allegation of being aggressive with a client/customer.

While I noted the Complainant’s responses to these allegations I find that he had accepted that he was speeding and that he crashed into the Head Office’s shutters.

On the balance of probability, I find that he became a difficult employee and was difficult to manage.

I find that he did not carry out management’s instructions as requested, arrived late at work, left early without permission and took the “law into his own hands” by substituting time off for diesel.

Overall, I find that there were serious issues with this employment that needed addressing formally and properly but this did not happen.

However as they occurred there was not sufficient reason to terminate this employment contract at that point in time.

Therefore, I find that the dismissal was substantively unfair.

However, I find that the Respondent has contributed to his dismissal by his actions and refusal to carry out instructions.

Procedural matters

I note the conflict of evidence in this case.

I note the Respondent’s position that they carried out disciplinary sanctions and ultimately were justified in terminating this contract of employment.

However, the reality is that the Respondent failed to follow its own disciplinary procedure.

I find that there was no evidence in most incidents of investigations, disciplinary sanctions, potential progression of the sanctions.

I find that there was much confusion in the manner in which the Respondent carried out its functions, none more so than on the 7th July 2017 when they served two performance improvement requirements and also dismissed him.

I find that in each incident the Respondent failed to properly investigate the incidents by discussing these with the Complainant and establishing the facts.

I find that they failed to escalate the matters to a disciplinary investigation, put the allegations in writing, offer him the right of representation and the right to defend himself and the right of appeal of sanctions.

I find that the Respondent failed to follow its own disciplinary procedure.

I find that the Respondent dismissed the Complainant and that he had not been issued with a final written warning.

I find that the procedures applied were hopelessly flawed.

I find that this has rendered the dismissal procedurally unfair.

Overall, I find that the dismissal was both substantively and procedurally unfair.

I find that compensation is the most appropriate redress.

I find that the Complainant has contributed to his dismissal by his conduct and behaviour and this must be taken into consideration when determining the quantum of the award.

Mitigation of loss.

I note that the Complainant made a number of on-line applications for painting jobs. He found work after 2.5 months.

Unfair Dismissal