Complainant

Respondent

Anonymised Parties

A Mechanic

A Motor Dealer

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-00021093-001

10/08/2018

The respondent says that on August 8th 2018 the complainant presented for work late for the second day in a row and smelling of alcohol.

He had been sent home the previous day for the same offence and told to report to the General Manager (GM) on arrival the following day.

However, he ignored the GM, who was waiting for him, did not offer any explanation for his late arrival and proceeded to clock in. The GM told him to go to the canteen and wait for him. The GM in evidence described the complainant as dishevelled, unfit for work and smelling of alcohol.

He arrived there some fifteen to twenty minutes later and told the complainant that this ‘could not go on’. He says the complainant responded, ‘You’re the boss, do what you want’.

The GM told him that he was a danger to have working under those circumstances.

The GM stated in evidence that the complainant had been given previous oral warnings, in early January and June or July.

He dismissed him for ‘Gross Misconduct’.

A Director of the business gave evidence that the complainant approached him later that morning asking to have his job back. However, he stood over the original decision of the GM.

The complainant disputed the detail regarding his lateness on August 8th. He had not been one hour and ten minutes late although he had been late.

He denied that he had been drinking the night before or smelled of alcohol.

However, his main submission was that he had been totally denied any aspect of fair procedure or natural justice in respect of the dismissal.

There was no proper investigation of the circumstances of his late arrival, and no disciplinary hearing or appeal. He was also refused a reference.

The respondent provided a copy of its handbook containing its various policies, including its disciplinary policies, although the complainant said he had never seen it before.

It contains provisions for investigating as part of a disciplinary process, definitions of gross misconduct, the right to be accompanied at a disciplinary hearing, and to appeal the outcome.

The requirements of natural justice are, at their most basic, relatively simple. While having a legal basis as constitutional rights they are, when brought to the level of the workplace simple principles of fairness.

In this case, the respondent said it had good grounds to be concerned about the complainant’s fitness to work, and, according to its evidence not for the first time.

If so, it had the simple option of suspending him pending initiation of the disciplinary procedure. (It had sent him home the day before).

It did not do so. The complainant denied that he had smelled of alcohol. Even if he had, the respondent had not established that he was under the influence of alcohol.

Instead it terminated his employment on the spot.

No amount of the exasperation claimed by the respondent with the complainant’s conduct justifies this sort of peremptory dismissal. The respondent said that it had been very supportive of the complainant; he had taken ten years to gain qualification as a mechanic which normally takes four, and there had been previous occasions when it might have taken stricter action against him.

He had been the subject of two oral warnings (one of which had expired).

The respondent employs twenty-three staff and while it claims that it has good staff retention in general, it will also be judged by how it behaves in a situation such as this.

And while ignorance of the principles of fair procedure is inexcusable, the failure to follow its own procedures insofar as they relate to the disciplinary process is fatal in a case of unfair dismissal.

The dismissal was unfair, and the complaint succeeds.

In respect of his losses the complainant was unable to get new employment for a period of nine weeks. His explanation for the failure to mitigate his loss was not entirely persuasive.

Indeed, his own evidence was that the motor trade was flourishing. I have taken this into account in my award of compensation.

I uphold complaint CA-00021093-001 and award the complainant €2,500.00. This is payment in respect of lost wages attributable to the dismissal and is subject to normal statutory deductions.

Unfair Dismissal