Complainant

Respondent

Anonymised Parties

An Operations Manager

A Social Services Provider

Representatives

Seán Ormonde Seán Ormonde Solicitors & Co. Solicitors

John Healy Kirby Healy Chartered Accountants

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-00021589-001

05/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00021589-002

05/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021589-003

05/09/2018

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

CA-00021589-004

05/09/2018

The Complainant commenced employment with the Respondent as a Project Worker on the 13th August 2012. His employment ended on the 30th June 2018. He was paid an annual salary of €82,000. A complaint was lodged with the WRC on the 5th September 2018.

CA-00021589-002 was withdrawn at the outset of the hearing.

The Respondent did not attend the hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing.

The Respondent did not attend the hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing.

The Complainant provided a detailed written submission.

The Complainant submitted that having joined the Respondent in September 2012 as a Project Worker he had been promoted to the position of Operations Manager in and around July 2016.

The Respondent submitted that he was never issued with a contract of employment at any time during his employment with the Respondent. He was only issued with an employee Handbook in January 2018. He was never the subject of any disciplinary or performance related complaints.

The Complainant submits that on the 4th of May 2018, he attended a meeting with the Director of the Respondent organisation, Mr A, and told him that he, the Complainant, was still owed €1,500 in unpaid wages for that month, €3,000 in travel expenses and €1,197 in respect of repairs to a company car that the Complainant had paid himself.   Mr A very abruptly told the Complainant to leave him alone.

On Tuesday 8th May 2018, the Complainant attended work at 8.55 am. At 9.20 am, Mr A and Mr B, (the Company Accountant), asked the Complainant into Mr A’s office. Mr A stated that there had been some issues with missing petty cash receipts to the value of €100,000. The Complainant denied knowing anything about same and queried whether he needed someone to represent him at the meeting. Mr A told the Complainant he did not need representation. Then followed a conversation regarding petty cash. At the end of the conversation Mr A instructed the Complainant to go home for a week or two, and not to contact anyone from work. He also instructed the Complainant to leave his phone in the office. Mr A told the Complainant he would sort out the monies owed to the Complainant, referred to above.

The Complainant submits that he telephoned Mr A on the 9th May 2018, but when Mr A realised it was the Complainant on the phone, he ended the conversation abruptly. When the Complainant returned to work on the 15th May 2018, he found his office was gone and that two other managers were in his place. He was also told to take another few days leave by Mr A and that they would meet thereafter.

The Complainant maintains that, by this time, the Respondent had de facto removed him from the workplace without an investigation or any disciplinary procedures. Further, the Complainant maintains that his de facto suspension was patently continued by the Respondent thereafter.

The Complainant met with Mr A on the 17th May 2018. Following some discussion regarding petty cash, Mr A told the Complainant to take another week off work, this despite the Complainant not being given any outline or details regarding his suspension or any investigation.

Shortly after this, according to the Complainant, he realised that he had been locked out of his company email account. The Complainant maintains that same was done without any reason or explanation being given and cemented the fact that he had been suspended and removed from the workplace.

There was some correspondence between the parties from the end of May through June regarding the monies the Complainant believed owed to him.

By letter dated 30th June 2018, the Respondent wrote to the Complainant, enclosing his P45. The Respondent enclosed no other information within this letter and did not make any other form of communication with him at this time.

The Complainant maintains that the Respondent dismissed him having; never put him on notice that his employment was in question; never put any specific allegations to him or presented actual evidence regarding same.   That he had been suspended unfairly and dismissed without any investigation having taken place; without being afforded representation or the opportunity to make representations.   Neither was the Complainant given the opportunity to appeal his dismissal.

The Complainant maintains that the above renders the Respondent’s dismissal of the Complainant fundamentally unreasonable and irretrievably flawed in terms of process.

I have considered this matter carefully.

I find the complainant was dismissed from his employment by the Respondent on the 30th June 2018, the date his P45 was issued to him.

The Complainant has submitted that the process used in the dismissal of the Complainant was fundamentally unreasonable and irretrievably flawed in terms of process.

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts states: (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.

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

• 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 whose conduct is being investigated will vary according to the circumstances. However, there are a certain fundamental requirement of fair procedures that cannot be dispensed with regardless of the particular circumstances.

From the evidence adduced by the Complainant it is clear he was dismissed without the requisite fair procedures being followed.

The procedures used in the process that lead to the Complainant’s dismissal, were not fair for several reasons including;

·         The Complainant was not given adequate details of the allegations to be able to adequately address them.

·         He was not given the right of representation.

·         The Complainant was not afforded an opportunity to defend himself and have his arguments and submissions listened to and evaluated by the Respondent in relation to the threat to his employment.

·         Was the Complainant was not informed of his right to appeal the decision to dismiss.

Without evidence from the Respondent it is impossible for me to reach any conclusions on the proportionality of the dismissal.

On the uncontested evidence of the Complainant I find this was an unfair dismissal.

At the hearing the Complainant gave evidence in relation to the efforts he has made to mitigate his loss. From July 2018 until November 2018, the Complainant tried to establish his own business but did not take any salary during the period. From November 2018 until February 2019, the Complainant worked but earned only €1,000 per month. The Complainant had no paid employment from February to March 2019. From March to August 2019 the Complainant earned €3,000 per month. In August the Complainant found a position in another care providers. I am satisfied that the complainant did his best to mitigate his loss. I find that an award of €70,000 is just and equitable in the circumstances.

The complaint is well-founded. I direct the Respondent to pay the Complainant €70,000 in compensation for his loss of earnings.

This complaint was withdrawn at the outset of the hearing.

The Complainant submits that the Respondent; left him short €1,500 in his May wages; failed to pay him his wages for June 2018 in the total net amount of €5,200; did not pay him for the repair of a vehicle damaged by a client leaving the Complainant short €1,197; did not pay travel expenses due, amounting to €4,000.

The Complainant submits that he is due a total of €11,897.

The Respondent did not attend the hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing.

On the uncontested evidence of the Complainant I find he is due his May short fall and his June wages.

Section 1 of the Act states, inter alia;

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

He is not therefore due the travel or repair expenses as such are not covered by the Act.

The complaint is well-founded. I direct the Respondent to pay the Complainant a sum of €8,333.

The complainant submits that the Respondent failed to provide the Complainant with a statutory notice period or payment in lieu thereof on the basis of the exception outlined in section 8 of the Act (dismissal for misconduct). In circumstances where this dismissal was itself unfair, it is submitted that the Respondent does not have a right to rely on section 8 of the Act and that, as such, the Respondent violated section 4 of the Minimum Notice and Terms of Employment Act, 1973.

The Respondent did not attend the hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing.

The Complainant was not given notice nor was he paid in lieu of notice, therefore he is due a payment in lieu of notice. As he has more than five years’ service he is entitled to 4 weeks’ salary

The complaint is well-founded. I direct the Respondent to pay the Complainant a sum of €6,833 in lieu of notice.

Lack of procedures, unfair dismissal, notice payment, illegal deduction of wages.