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-00016857-001

16/01/2018

The Complainant commenced working for the Respondent on 29th January 2016 as a cleaner. He was promoted to the front desk receptionist in September 2016. He was dismissed on 30th November 2017. The parties confirmed that the Complainant worked 18 hours a week and was paid €709.94 gross monthly. The Complainant claims that he was unfairly dismissed and seeks compensation. The Respondent rejects the claim.

The Respondent submits that the reason for the dismissal was falsification of records. The Respondent submits that there were two incidents, on 14th October and 29th October 2017 that the Complainant was 15 minutes late for work and he falsified his timesheets. By way of background, the Respondent submits that in September 2017 a negative review of the gym on the internet was brought to the Respondent’s attention by another employee. The review was posted by an unknown person using initials the same as the Complainant’s. The Respondent submits that, although it had no proof the Complainant was responsible for the post it started looking at his performance. A number of issues were noticed such as: letting people in without checking them in (financial loss), being on his phone, rolling on the ground in front of customers. The Complainant was asked to attend a meeting on 26th October 2017. At the meeting, which was attended by Mr JD (Director), Ms AD (JD’s mother) and the Complainant, the Complainant was informed that the Respondent was investigating his performance and conduct at work. Subsequently, the Complainant was called to a disciplinary meeting on 17th November 2017. The meeting was attended by Mr RD (Director, brother of JD), Ms AD (mother of JD and RD) and the Complainant. At the meeting the Complainant was informed that the Respondent concluded its investigation into his conduct and found a number of breaches falling under minor, major and gross misconduct. The minutes of the meeting listed the breaches as follows: “1. Left work with weights and bar on the ground. Trip hazard – Unsafe. 2. Not cleaning showers or changing area. 3. Latness and falsification of company records i.e. timesheets. This fall under gross misconduct, which the company is within its rights to dismiss you. 4. On the memory stick: Evidence of being late. Not checking people in because you’ve been stuck on your phone or out smoking. At one point you were on the phone so much you had to charge it. Letting non members look around the gym by themselves, they are not insured. Yawning in front of a member. Rolling up and down on the ground behind the desk. Not checking members in, unless you know what date a members direct debit come out of their account by heart, then without checking them in on the computer you cant know if they are paid-up member, Which causes us to let unpaid members access which in turn loses the company money. Hence you were put on cleaning duties as the company cannot afford to let this happen. 5. Then there is the Google Review. “ [sic].

At the meeting the Complainant was informed that he was suspended with pay until the Respondent decides which course of action to take.

On 30th November 2017 the Respondent informed the Complainant that his employment has been terminated with immediate effect.

The Complainant submits that after being undermined and intimidated by his manager Mr JD for some time he submitted a formal written complaint of bullying and harassment to Ms AD (mother of Mr JD), who he believed was a Director of the Respondent on 14th November 2017. On 15th November 2017 the received an email form Mr RD, brother of Mr JD informing him that he was taking over the investigation into his bullying and harassment complaint. The Complainant feels that there was no independent person present and that there was a conflict of interest with Mr RD investigating the complaint of bullying against his brother. On 29th November 2017 the Complainant received an email from Mr RD stating that there was insufficient evidence to prove that any bullying had taken place. On 30th November 2017 the Complainant received an email from Mr JD stating that his employment with the Respondent was to be terminated with immediate effect due to gross misconduct. At no time whilst in employment of the Respondent did the Complainant receive any written warnings and he feels that proper procedure was not carried out when his employment was terminated.

Section 1 of the Act defines dismissal in the following manner: “dismissal”, in relation to an employee, means— (a)the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b)……

Section 6(1) 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): “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 the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Dismissal as a fact is not in dispute and so therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. The Respondent argues that the dismissal was warranted due to the Complainant’s conduct. In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Act including: “(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. (7) 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, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made.

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states: ‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

The Complainant commenced his employment with the Respondent in January 2016. He was promoted in September 2016. The Respondent submits that the Complainant was dismissed for gross misconduct, more specifically falsification of records (time sheets). The Respondent exhibited “Employee Handbook” which stipulates that: “You will be liable to summary dismissal if you are found to have acted in any of the following ways:… f. deliberate falsification of any records (including time sheets, absence records and so on, in respect of yourself or any fellow employee);… The Respondent argues that the Complainant was 15 minutes late for work on two occasions. However, he did not amend the timesheets accordingly. It is the Respondent’s position that the Complainant falsified the records. The Complainant denies these claims. The Complainant argues that he had previously reported to the Respondent that the monitor clocks at the workplace have on regular occasions showed wrong times as a result of being reset.

Taking all of the circumstances of this case into consideration, I find that even if the Complainant was late on two occasions and did not amend the timesheets accordingly (which I do not say did happen) the decision to dismiss him was not within the range of reasonable responses of a reasonable employer.

In relation to the process itself, the Respondent exhibited a Handbook which outlines Disciplinary Rules and Procedures. The Respondent obliges to make every effort to ensure that …any action taken under this procedure is fair”.

I carefully reviewed the evidence presented and I am satisfied that the Complainant was not afforded a comprehensive and thorough disciplinary process. In fact, it is my considered opinion that the Respondent showed little regard to the principles of fair procedures and natural justice. The Complainant was accused of various breaches, some of them the Respondent confirmed were never proven. The Complainant was called to the meeting on 26th October 2017. He was not informed of the reason for the meeting, he was not informed of his right to representation. The meeting was attended by Mr JD and Ms AD (mother of JD and RD, not involved in the Respondent organisation) and related mainly to the internet review. The Respondent insisted at the hearing that the review was not the reason for dismissal. The Complainant highlighted a number of concerns in respect of the work practices and the Respondent undertook to address them. The Complainant was subsequently, without consultation or any notice taken of his duties and moved to cleaning duties for the month of December. On 7th November 2016 the Complainant was invited to a meeting with Mr JD on 10th November. On 9th November Mr JD informed the Complainant by email that the meeting scheduled will be a disciplinary meeting and he could bring someone with him. The Complainant replied that he wouldn’t be able to arrange someone on such short notice and requested to reschedule the meeting. On 14th November 2017 the Complainant made a formal complaint of bullying and harassment against Mr JD. On the next day Mr RD replied that he will be taking over the investigation from Mr JD and arranged a meeting on 17th November. The Complainant attended the meeting with his brother. He was put on paid suspension and was given an envelope with various documents and information. He was given 5 days to respond to the allegations. On 24th November 2017 the Complainant responded to the allegations in writing to Mr RD. On 29th November 2016 Mr RD emailed the Complainant stating that there was insufficient evidence to prove the claims of bullying and harassment. The Complainant wrote back to RD expressing his dissatisfaction with the conclusion. The Complainant noted that the Handbook provided for an external party to investigate claims if there is a conflict of interest. On 30th November 2018at 11.24am Mr JD emailed the Complainant stating that they had come to a decision on the Complainant’s future at the Respondent organisation and requested him to attend a meeting at 7pm that evening. In an exchange of emails that followed, the Complainant clearly voiced his concerns in relation to the short notice and his inability to secure representation. He also questioned the fact that Mr JD was to attend the meeting. He was informed that “the meeting will be taking place at 7pm either way”. The Complainant emailed the Respondent stating clearly that he is unable to bring a witness due to the short notice and that he would feel more comfortable to attend a meeting on the next day. Mr JD on behalf of the Respondent emailed the Complainant at 8.55pm that evening to inform him that he was dismissed due to gross misconduct, namely deliberate falsification of records. The email informed the Complainant of his right to appeal the decision. The email goes on to state: “…if an appeal hearing takes place you can choose an employee of your choice to act as a witness or to speak on your behalf…” The Complaint felt that there is no point in appealing the decision.

The two persons: Mr JD, Mr RD ultimately took on the role of judge and jury in the Complainant’s case. The Complainant’s conduct was investigated by Mr JD against whom the Complainant made bullying and harassment complaint. This complaint was in turn investigated by Mr RD, brother of Mr JD. The Complainant was never interviewed as part of this investigation, he never got any report in respect of the investigation. Subsequently Mr JD and Mr RD made a decision to dismiss the Complainant.

Taking these findings together, I am satisfied that the Respondent has not discharged the onus of showing that the Complainant’s dismissal was fair. I find that the complaint is well founded and that the dismissal was substantially and procedurally unfair and the sanction of dismissal was disproportionate.

I am satisfied that the appropriate form of redress, having regard to all the circumstances, is that of compensation. Regarding compensation, the Act provides that compensation for financial loss (which is defined as including any actual loss and any estimated future loss) attributable to the dismissal, as is just and equitable having regard to all the circumstances, of up to a maximum of 104 weeks remuneration, may be ordered.

The Complainant submitted that he started a new employment on 28th January 2018 with a comparable wage.

I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent. I consider it just and equitable in all the circumstances to award him €1,420. The Respondent is therefore ordered to pay the Complainant a total of €1,420 in compensation, subject to any lawful deductions.

Unfair dismissal-flawed procedures-disproportionate sanction