ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00022870

Parties:

Complaint(s):

Date of Adjudication Hearing:  17/09/2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015] following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Unfair Dismissal Act 1977

Ca-00029451

Background

 The claimant commenced employment with the respondent on the 4th May 2018 as a shop/store assistant with general duties but did not engage in sales.

 He was paid €401.80 gross (€367.48 net) for working 41 hours per week working 5 of 7 days per week.

Both parties made written and verbal submissions at the hearing.

Summary of Respondent’s position

The store manager became aware that regular customers, based at a commercial establishment situated nearby, had stopped coming into the shop. On inquiry, he became aware that there was some dispute involving the claimant.

On the 22nd March, the respondent store Manager asked to speak to the claimant privately in the storeroom and the door was closed. No third party was aware of the conversation. The matter was raised but the claimant refused to engage saying that the matter was a private matter and did not concern the respondent. The claimant was asked to always be courteous to customers and that he no longer deal with personal matters while at work.

The matter would have rested at that but the fact that the claimant then demanded an apology from the respondent’s Manager and escalated the matter by making a formal complaint against the Manager.

The complaint was referred for an independent investigation and he(investigator) interviewed both the parties on the 5th April and issued a finding that the complaint against the manager was not well-founded.

On the 7th April, the respondent notified the claimant, in writing that it was investigating two matters namely;

A             The making of a vexatious complaint against another employee.

B             Conducting private business at his place of work. The store Manager tried to resolve the issue informally. The claimant was requested to attend a disciplinary meeting on the 19th April 2019.

The meeting was adjourned at the claimant's request to take legal advice. Further meetings were arranged but the claimant did not attend.

On the 1st May 2019, the respondent issued a letter to the claimant to attend a disciplinary meeting in relation to the same matter on the 3rd May 2019. The claimant did not attend.

On the 8th of May 2019, the respondent issued a letter to the claimant for the fourth and final time to attend a meeting on the 10th of May 2019. The claimant did not attend.

On the 1st June 2019 the respondent issued a letter to the claimant informing him that the respondent had concluded that he (the claimant) had made vexatious complaint against the store Manager

.

The respondent submitted that it was essential in the workplace that a proper working relationship existed, but in this instance, it had completely broken down because of the complaint.

The respondent had also concluded that without its knowledge and in breach of his contract of employment the claimant had conducted some unknown business with a commercial entity based nearby during his employment. The relationship with the personnel in that entity had broken down and as result, a group of regular customers had stopped coming into the shop and garage with the resultant loss of custom.

The respondent afforded the claimant every opportunity to put his case, but he failed to co-operate, and, in that context, claimant must take full responsibility.

The respondent always acted lawful and reasonable taken where the claimant refused to co-operate, and which contributed to his dismissal.

Summary of the Claimant’s position

The claimant submitted that he was invited to attend a closed-door meeting in the storeroom on the business premises by the Manager.

The claimant stated that he was questioned on details of another proximity company and individuals’ patronage to the respondent and the customer churn elements and the trend attrition attached. The claimant stated that it was implied on the basis of hearsay that He (Claimant) had played a negative part and had also been an influential link in this particular issue.

The claimant submitted that he declined to become embroiled citing that it was an influence, interest, and concern beyond his legal purview at the time. The claimant submitted that he cautioned the Manager that it was considered by him that the matter under his own purview limitations were borderline contravention of his employee rights if the line of questioning continued at the time.

 The claimant submitted detailed reasoning why he did not attend the appeal hearing citing his rights.

Findings

 I find that having examined all documentation:

I find there is very little difference between the parties on the sequence of events.

I have examined the claimant’s contract of employment which was signed on the 22nd May 2018.

I find in 2.2 “you will observe and comply with all lawful instruction, rules, regulations, and policies confirmed to you from time to time by the respondent”.

I find that in 3.2 of the contracts

“during the employment you must devote your time, attention and skills exclusively to the business of the company and you must use your best endeavours to promote the interests, business, and welfare of the company. You will not, during the continuance of your employment, engage in other work or employment for any other party without the prior written consent of the company. You must avoid outside business relationships, or business dealings with any of the company’s customers/competitors”

I find that store Manager was within his rights and obligations in accordance with the contract of employment to enquire from the claimant if the issue were affecting the business.

I find that the Store Manager, in line with the contract of employment, was also within his rights to enquire if the claimant was involved with outside business interests.

I find that the claimant in accordance with the contract should have complied with its terms and conditions

I find that it is regrettable the claimant did not cooperate at any stage with the investigation which further entrenched the party’s positions.

Recommendation

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find in all circumstances the dismissal was fair and the claimant’s case for unfair dismissal falls.

Dated:   2^nd December 2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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