Complainant

Respondent

Anonymised Parties

A Paramedic

An Ambulance Provider

Representatives

SIPTU

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-00020431-001

09/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00020431-002

09/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00020431-003

09/07/2018

The complainant was engaged as a paramedic from 1 September 2014 until his employment ended on 29th May 2018 earning €612 weekly.

The complainant detailed he was unfairly dismissed, that his employment was terminated without notice or pay in lieu of notice and that he did not receive a statement of his terms of employment in writing. The respondent denies the allegations.

During the two-day hearing there was copious volume of documentation and oral evidence presented and, whilst I will not be referring to every letter, incident or event, I have taken into account all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing.

A brief chronology of events can be summarised as follows:

The complainant was employed as a paramedic between 1 September 2014 until 29 May 2018.  The respondent is an ambulance service provider.

The complainant advised the respondent on 6th April 2018 that he was unwell and did not attend work on 7th April 2018.

The complainant attended a football match on 7th April 2018.

Mr F, Operations Manager for the respondent had been advised by some employees in advance that the complainant would be phoning in sick and would be attending a football match.

Mr A, HR Manager presented this information to the complainant by way of a photograph taken of the complainant attending the football match.

On 11th April the complainant was suspended with pay by Mr E, General Manager, pending an investigation.

On 18th April Mr B, Consultant for the respondent , invited the complainant to attend an investigative meeting to be held on 25th April 2018 which the complainant attended.

On 3rd May 2018 a further investigative meeting was due to take place which the complainant did not attend.

Two investigative reports were issued following which, a disciplinary meeting was scheduled for 17 May 2018, conducted by Mr C, a HR consultant for the respondent with Mr E, General Manager, also in attendance.

On 28th May a disciplinary report found instances of major misconduct, one instance of gross misconduct and that dismissal was the appropriate sanction.

On 29th May 2018 the complainant was dismissed by letter by Mr E.

This decision was appealed and was heard on 19 June by Ms D.

On 3rd July 2018 a report was issued upholding 2 findings of major misconduct and one allegation of gross misconduct (with regard to threats to employees) and the decision to dismiss was upheld.

The respondent disputed that the dismissal was unfair.

The respondent had received notification from employees that the complainant would be phoning in sick the weekend of 7th April to attend a son’s football match. It was also detailed that the complainant planned to behave in a way that would induce the respondent to dismiss the complainant. The respondent received a text from the complainant on 6th April detailing that he was sick and the respondent requested a person they knew to attend the same football match and take a photo of the complainant. This was presented to the complainant by Mr A, HR Manager, on the complainant’s return to work.

It was outlined that the complainant failed to engage with Mr A when Mr A sought to raise the issue with the complainant about his attendance at the match while out sick.   The complainant went to the staff room and told employees “I   know one of you fuckers grassed me up and when I find out who it is, God help them” and it was also detailed that he said “I know who done (sic) it now and that person forgot one crucial thing, my brother in Derry”. The respondent outlined that the employees whom this comment was directed at believed it was a reference to the complainant’s brother who they believed had been in prison.

It was put forward that those present when the complainant said this, interpreted the words as a threat and the complainant was suspended with pay pending investigation which was to be conducted by Mr B. The respondent confirmed that contact was made with the gardaí around this threat and employees were advised that if they were concerned to contact the gardaí directly. To their knowledge employees did not contact the gardaí.

The complainant attended the first investigative meeting but did not attend the second. Two investigative reports were issued with a number of allegations made against the complainant, and the complainant was requested to attend a disciplinary hearing conducted by Mr C. It was confirmed that the investigator Mr B gave a questionnaire to employees to complete at the investigative stage and that this questionnaire had been prepared by somebody in the respondent’s office and handed to Mr B. Mr B also confirmed that he had emailed an investigative report to Mr E but agreed it was different to a report received by the complainant.  

During the disciplinary process, it was confirmed that the role of Mr C was to chair the disciplinary meeting and that Mr E was in attendance as note taker, to ask questions and to make the ultimate decision following the issuance of a report. Mr E reviewed this disciplinary report in consultation with his brother Mr F and they took the decision to dismiss based on the evidence. It was Mr E’s best friend who took the photo at the football match at the request of Mr E. While a number of allegations were upheld and regarded as serious misconduct; it was the threat that the complainant made to employees that was considered gross misconduct and the decision was made to dismiss the complainant.

The complainant appealed the decision and the appeal was heard by Ms D independently who decided that some aspects of the disciplinary report should be substituted in certain respects in favour of the complainant. Ultimately, Ms D though, found that the decision to dismiss was fair.   The respondent confirmed that Ms D had been selected as she was on maternity leave and considered to have a sufficient distance with the business to be independent. It was confirmed that she is a wife of Mr F, sister-in-law of Mr E and continued to do wages for the respondent while on maternity leave. It was detailed that her independence was evident by her overturning of some aspects of the disciplinary report and it was confirmed that while new evidence was by her she did not present this to the complainant as it seemed to be conclusive.

It was detailed that the dismissal was procedurally fair and justified on the facts established during investigation, disciplinary hearing and appeal. The respondent put forward that should there be found to be aspects of the procedure procedurally unfair, it was denied that the mere fact of that unfairness was sufficient to render the decision to dismiss unfair.

Case law cited included Elstone v CIE,Allied Irish Banks plc v Purcell [2012] ELR 189, Looney and Co Ltd v Looney UD 843/1984, Coad v Eurobase (UD 1138/2013), Mlynarski v Pianos Plus (UD1294/2008)

The complainant advised the respondent employer on 6 April 2018 that he was unwell and would not be at work the following day. On the following day he attended a football match that his son was playing in as he felt well enough but did not attend work as his understanding was that he could not attend work until 48 hours following diarrhoea. On 9th April he arrived for work and was handed a photograph by Mr A, HR Manager who said, “we got you”. Thecomplainant found later that the respondent had arranged for somebody to take this photo of him at the football match. It was detailed that this was in breach of data protection legislation. The complainant felt harassed by Mr A and left the premises feeling unwell and submitted a grievance against the manner in which he was treated by Mr A but to date that grievance has not been heard. The complainant was suspended with pay.

The complainant attended the first investigate meeting but declined to attend a second meeting as it was given at short notice but was told the meeting would proceed without him.   On 9th May the complainant received 2 investigation reports with statements attached from interviewees and a letter to attend a disciplinary hearing. This disciplinary hearing was held on 17th May conducted by Mr C and Mr E. The report issued by Mr C found that some items constituted major misconduct and one item constituted gross misconduct. A letter of dismissal was issued on 29 May from Mr E and the decision to dismiss was appealed which was heard on 19 June. This appeal was conducted by Ms D, office manager who is also wife of Mr F and sister-in-law of Mr E. Ms D issued a report on 3 July detailing that she upheld allegations under items 1, 4, 5 and 7 and confirmed the dismissal .

It was outlined that the respondent had been unreasonable in their decision to terminate the complainant’s employment and that there had been many breaches in procedures and that on many occasions the laws of natural justice did not apply to the investigation, disciplinary and appeal process.

It was submitted that this included the taking of a covert photograph whereby the data recorded should not have been relied upon in the decision to dismiss.   It was also put forward that the investigation was conducted improperly by Mr B and that he failed to allow the complainant sufficient notice regarding the investigative meeting and that the investigator put forward leading questions in relation to many allegations including whether the complainant cleaned the ambulance after his shift. It was further detailed that Mr B allowed the direction of the investigation to be conducted by Mr E and Mr F which included Mr F’s letter of 20th April to Mr B. This letter sets out detail of what Mr F thought “may be of relevanceto (Mr B’s) investigation” and which it was submitted, outlined further breaches of procedural fairness by the respondent.

The complainant submitted that he never told employees about going sick and denied that he had made threats or mentioned his brother. He detailed that he did have concerns at times with the quality of the work of some colleagues, would correct them in a mentoring way and that he may have been sharp on occasion with the employees who made the allegations against him. It was confirmed by the complainant that he never objected to Ms D hearing the appeal at the time.

With regard to the specific items that had been upheld on appeal, it was put forward that breaches of procedure as well as unreasonableness were evident in :

Items 1 - pre-determined sick leave - It was unreasonable to discipline the complainant regarding sick leave as the complainant was unable to work and it would have been unsafe for him to work with patients so soon after diarrhoea.   It was also detailed that he had been previously advised that he could rearrange his shifts and no medical evidence was sought in relation to whether the illness was genuine or otherwise.  

Item 4 - misuse of vehicles and failure to devote attention to business - No consideration was taken into the common practice within the organisation of utilising the company vehicle for some personal use.  

Item 5 - sabotage - It was denied that the complainant ever alleged he would make any statements that might ‘sabotage’ the respondent.

Item 7 – threats against employees - It was denied that there were threats made by the complainant against fellow employees and it was suggested by the complainant that there was collaboration or coaching in the statements provided.

It was outlined that the appeals process breached the SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures as it was not conducted in a rational or fair manner and that Ms D who conducted the hearing should not have conducted it as she was the wife of another director Mr F who had taken an active part in the matter and that Ms D was also more junior to Mr E and Mr F. It was also submitted that the appeals process provided for the appointment of an external person to hear the appeal but this did not happen. In addition the complainant had been advised there would not be a rehearing of the appeal yet Ms D sought new information and did not present same to the complainant. In effect it was detailed that a fair and impartial hearing was not available to the complainant.

With regards to mitigation of loss the complainant detailed he was out of work from 29th May 2018 until September 2018 when he secured employment earning but has an ongoing loss of €362 weekly.   The complainant detailed that he had applied for jobs but had limited success owing to his age and did not have any proof of his application for jobs. Case law cited included Bank of Ireland v Reilly [2015] IEHC 241, Pottle Pig Farm and Panasov UDD1735, Ambicki V Keltech Engineering (Waterford) Ltd UD 525/2012, Adj-0009133.

The respondent set out that the complainant was dismissed following an investigation into a number of allegations. Upon appeal, allegations were revoked/partially revoked but ultimately the decision to dismiss was upheld. It was therefore detailed that some allegations of major misconduct were upheld and that the allegation of gross misconduct was also upheld which resulted in the dismissal of the complainant.

The complainant set out what they regarded as significant breaches in procedure including breaching data protection by taking covert photographs of the complainant, failure to investigate the complainant’s grievance around same; improper; pre-determined decisions; leading questions put to witnesses; collaboration between witnesses; failure to provide details of specific allegations to the complainant; failure to share additional information with the complainant and inappropriate consultation with decision makers and ultimately unfair and unreasonable investigation, disciplinary and appeals process.

Section 4 of the legislation sets out :

“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.”

Section 6 details that

“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.”

Section 14(1) of the Act refers to “a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee” i.e. the employer’s stated disciplinary policy.

The right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet,UD1294/2008.

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited[1973] IR 388, also detailed:-

"This court in re Haughey[1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

The court in Glover v BLN Limited(1973) IR 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. It is quite clear from the case law of the superior courts, that there is no fixed standard of natural justice which lays down how certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances.

Furthermore, Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case.   In that case, Keane J. stated that the two principles of natural justice, namely “audi alterem partem and nemo iudex in causa sua cannot be applied in a uniform fashion to every set of facts”. Therefore, while employers are required to afford natural justice and fair procedures to employees when carrying out disciplinary procedures, regard must be had for the particular circumstances of the case to ascertain what the requirements of natural justice and fair procedures demand in the particular circumstances. If the process followed by the employer, while not entirely faultless, is within the scope of what could be considered a reasonable response in the particular circumstances, then the employer's actions will be deemed to be acceptable.

S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, provides that:-

The essential elements of any procedure for dealing with grievance and disciplinary 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. It is clear from the case law of the superior courts in this jurisdiction, that there is no fixed standard of fair procedures which lays down that certain specific matters must be complied with. The protection to be afforded to a person who is being investigated under the disciplinary process will vary according to the circumstances. However, there are certain fundamental requirements of fair procedures that cannot be dispensed with regardless of the particular circumstances.

In this instant case, the respondent detailed they heard from employees that the complainant planned to phone in sick to attend a football match and he failed to turn up for work. He was then photographed at the football match and allegedly made threats against employees. I note that it was never disputed that the complainant would need to be free from diarrhoea for a period of time before returning to work. It was also unclear what was the purpose of sending a friend of the respondent to take a photo of the complainant at his son’s football match.   How and ever; the complainant was then suspended with pay pending an investigation by Mr B who utilised the respondent’s questionnaire to conduct his investigation. It is somewhat extraordinary that the respondent would task a consultant to investigate independently but yet involve themselves to this degree in the investigation by preparing a questionnaire to be distributed.

The respondent at times appeared confused as who then made the decision to dismiss; as on the one hand, it was Mr C who conducted the disciplinary meeting with Mr E as a notetaker but evidence was also given that Mr E was allowed to ask questions and that Mr E consulted with his brother Mr F, as they share an office, and they both made the decision to dismiss the complainant. Mr E and Mr F, who made the decision to dismiss, had also had requested their friend to take the photo at the football match. Ms D who was wife to Mr F and sister in law of Mr E was then appointed to hear the appeal and she held a role more junior to the role of Mr E and Mr F.

I note that albeit Ms D was on maternity leave at the time, she still conducted some aspects of her job and thus continued to have a connection with the business; aside from that of her obvious relationship with the senior management who dismissed the complainant. While it can be appreciated that it is an organisation with a small management team, it was unfortunate that the respondent failed to ensure impartiality into all aspects of the process. Having examined the disciplinary procedures adopted and taking note that while circumstances were difficult for the respondent and that they made some efforts to source independent personnel to be conduct the process, it was a significant detriment to a fair process and therefore unreasonable that Mr E and Mr F involved themselves during each stage. This included designing a questionnaire for the investigator, attending the disciplinary meeting as a notetaker taking the decision to dismiss and then appointing a close family member, with a more junior position, to hear the appeal.  

It is clear that this is in breach of the principles of natural justice, “nemo iudex in causa sua”, no person must be a judge in their own cause. While noted in Meath County Council v. Creighton UD11/1977and in Carr v. Alexander Russell Ltd (1976) IRLR220‘An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee’ I must find that the proceedings were not conducted fairly and the dismissal was unfair. While I find that the dismissal was unfair, I have examined the complainant’s behaviour and find the complainant contributed to his own dismissal. 

Having considered the remedies available I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case. With regards to mitigation of loss, the complainant detailed that he remained out of work from dismissal until September 2018 when he secured what he regards as unstable employment and that he continues to incur loss of wages since taking up employment. The complainant outlined efforts to secure other employment, however, no proof of such alleged efforts to secure other employment was provided.

The standard set out for mitigation is evident in Sheehan v Continental Administration Co Ltd (UD 858/1999) in that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

Having assessed all the information before me and based on the procedural unfairness of the dismissal, the contribution of the complainant to his own dismissal and his limited proof of employing a reasonable amount of time each weekday in seeking work”, I find it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €5,000.

The complainant outlined that his employment was terminated unfairly, without notice and that his weekly pay had been €612 weekly.

The respondent detailed that as the complainant’s employment was terminated owing to gross misconduct, there was no entitlement to notice.

I have found in CA-00020431-001 that the complainant was unfairly dismissed.

Section 4 (1) details that “An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

The complainant’s weekly rate was detailed as €612 and I find that the respondent terminated the complainant’s employment without adhering to their obligations under Section 4 of the Act. I find the complainant’s claim is well founded and I direct that the respondent pay the complainant €1,224.

The complainant denied receiving terms of employment.

The respondent outlined that terms of employment had been provided to the complainant but no longer had the complainant’s signed copy.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 states that an “employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the … terms of the employee's employment.”

Based on the evidence I must prefer the evidence of the complainant that the respondent has not met their obligations under the Act. I uphold the complaint, find the complaint is well founded and direct the respondent pay the complainant €1,200.

CA-00020431-001

I find the complaint is well founded and I direct that the respondent pay the complainant €5,000.

CA-00020431-002

I find that complaint is well founded and I direct that the respondent pay the respondent €1,224.

CA-00020431-003

I find the complaint well founded and I direct the respondent pay the complainant €1,200.

Unfair dismissal, minimum notice, terms and conditions