ADJ-00004656

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004656

Parties:

Complaint:

Date of Adjudication Hearing: 17/09/2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

This complaint of unfair dismissal was received by the Workplace Relations Commission on 29th August 2016 and has a convoluted history. It was initially referred to a different Adjudication Officer and listed for hearing on 31st January 2017. However, shortly before the hearing, the Complainant’s legal team came off record and McCotter & Company Solicitors came on record and the matter was adjourned to facilitate same. The Respondent was represented throughout by Mr Marcus Dowling BL, instructed by Byrne Wallace. The hearing was rescheduled for 7th November 2017 and was adjourned for the exchange of legal submissions and furnishing of same to the WRC. On that date, the Complainant attended at the hearing but his Solicitor was unable to attend owing to ill-health. In a subsequent exchange of correspondence, Solicitors for the Respondent sought to have this complaint dealt with by way of written submissions whilst the Solicitor for the Complainant sought to call oral evidence in addition to any written submissions. The Adjudication Officer confirmed his directions in writing including that the Parties may call witnesses to give evidence at the hearing. Following a further exchange of correspondence and telephone calls regarding a mutually suitable date for rescheduling the hearing, the matter was eventually listed for hearing on 2nd February 2018. Written submissions were exchanged and furnished to the WRC. After the hearing commenced, the Complainant and/or his Solicitor called the Adjudication Officer’s integrity and professionalism into question and requested that he recuse himself. The Adjudication Officer subsequently confirmed in writing to the Parties that after careful consideration of this request, he had formed the view that it would be best to have this matter rescheduled for hearing before a new Adjudication Officer.

Accordingly, the Director General of the WRC referred this complaint to me and in accordance with Section 8 of the Unfair Dismissals Acts 1977-2015, I inquired into same and gave the Parties an opportunity to be heard by me and to present any relevant evidence. I was not privy to any of the evidence adduced at the initial hearing and commenced investigating the complaint afresh. The matter was scheduled for hearing on 13th July 2018. An application was made for an adjournment by the Complainant’s Solicitor on the basis that both he and the Complainant were on vacation. They were unable to provide vouching and the application was refused. In an email to the WRC dated 3rd July 2018, the Complainant’s Solicitor stated: “As the complainant’s legal representative it is imperative that he is represented in these proceedings given the complex issues involved.” Further correspondence from both Parties immediately before the hearing indicated that they wished to have this matter dealt with by way of written submissions only. As confirmed in writing to the Parties, I considered the request and given the myriad of factual and legal issues evident from the papers, was of the view that this complaint could only be properly be dealt with by way of an oral hearing and to this end, the hearing of 13th July 2018 was proceeding. On that date, the Complainant attended without his Solicitor and apart from repeating the request that I deal with the matter on the papers only, refused to cooperate with the hearing citing legal advice and repeatedly asserting that he would be prejudiced by the absence of legal representation if an oral hearing were to proceed. Counsel and Solicitors for the Respondent were in attendance and also sought to have the matter determined on the papers only. It was apparent that the Parties had formed the view that an appeal to the Labour Court was an inevitability and were seeking to bypass an oral hearing before the WRC. I obtained a delegation from the Director General to consider whether to exercise a discretion under Section 8B of the Unfair Dismissals Act 1977 (as amended) to hear the matter by way of written submissions only, which provides: “The Director General may, where he or she considers that a claim for redress under this Act may be dealt with by written submissions only, inform the parties to the claim, by notification in writing, of his or her intention to deal with the claim in that manner.” Whilst the basis for the Complainant’s dismissal was not substantially in dispute, as apparent from the written submissions and confirmed by the Parties, there were numerous factual matters in dispute such as the Respondent’s motivation and the fairness of procedures giving rise to his dismissal. I confirmed my view that the only appropriate way of adjudicating on such issues was by way of hearing oral evidence tested in the usual way. I also formed the view that the Complainant would be prejudiced by the absence of legal representation should the hearing proceed on the day. Based upon the Complainant’s Solicitor’s availability, I had the matter specially fixed for hearing for a full day on 17th September 2018 as notified to the Parties by way of letters dated 10th August 2018. I warned that save for exceptional circumstances, this would be the last adjournment granted to the Complainant. I was also cognisant that various witnesses had been in attendance on behalf of the Respondent at the hearing dates, some of whom had travelled from the UK and of the need for fairness to both Parties. On the rescheduled hearing date of 17th September 2018, being the fifth hearing date for this complaint, the Complainant attended again without his Solicitor. He did not proffer any basis for his absence or seek further adjournment and indicated that he wished to proceed in his absence. He also indicated that he would not be giving any evidence on legal advice and called into question the WRC’s legal powers to properly deal with his complaint and in particular its inability to compel the attendance of witnesses and/or with documentation [since reinstated under the Employment (Miscellaneous Provisions) Act 2018]. Given that the basis for his dismissal was not in dispute, it was unclear as to how he was so prejudiced. Subsequently, the Complainant’s Solicitor wrote to the WRC stating that he had suffered “adverse personal circumstances” leading to his non-attendance but this was not brought to my attention at the time.

Background:

It was common-case that the Complainant had been employed by the Respondent from 25th July 2011, initially as an Insurance Claims Examiner and subsequently as a Claims Manager from 1st April 2014 until his dismissal with notice on 30th May 2016. He was dismissed for breaching the Respondent’s Ex-Gratia Policy and Process by exceeding his authority in relation to the expectations given to a broker and client regarding an ex gratia payment on a claim. He earned a salary of circa €120,000 per annum at the time of his dismissal. He contended that he had been unfairly dismissed whilst the Respondent contended that his dismissal was both substantially and procedurally fair.

Summary of Respondent’s Case:

As the fact of dismissal was not in dispute, the onus of proof rested with the Respondent to show that the dismissal was fair. Several witnesses gave evidence outlining the circumstances giving rise to the Complainant’s dismissal, the procedures adopted and considerations made. In particular, the Appeals Officer confirmed that the Complainant had not attended the appeal hearing. On weighing up all of the evidence, he had concluded that arising from his conduct, he was not competent to continue as a Claims Manager and dismissal was the appropriate sanction. It was submitted that the decision to dismiss the Complainant was substantially and procedurally fair and within the requisite “band of reasonable responses” as set out in various Irish and UK caselaw outlined in written submissions. The Complainant declined the opportunity to challenge the Respondent’s evidence.

Summary of Complainant’s Case:

The Complainant declined to give any formal oral evidence in support of his complaint and/or put the issues with the substantive and procedural fairness of his dismissal as raised in his complaint form (mirroring his appeal) and written submissions (including a protected disclosure element) to the various witnesses. Neither was any formal evidence of losses or mitigation of same proffered.

Findings and Conclusions:

I have considered the evidence of both Parties in this matter in light of Section 6 of the Unfair Dismissals Act 1977 (as amended). In circumstances where the Respondent’s evidence regarding the substantial and procedural grounds for dismissing the Complainant on the ground of conduct went unchallenged, I find that the Respondent has discharged the requisite burden of proof and consequently that his dismissal was fair. I am further satisfied that the issues raised in the Complainant’s complaint form and written submissions were adequately met by the Respondent.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I find this complaint of unfair dismissal not to be well-founded and accordingly, dismiss same.

Dated:   April 24th 2019

Workplace Relations Commission Adjudication Officer: Aideen Collard