UDD1974

The Complainant worked on a part-time basis for the Respondent from 2007 until his dismissal in 2017. He was employed as a milk delivery driver. There is disagreement between the parties as to the hours worked and the earnings. The Complainant states that he received a cash in hand payment of €120 per week and the Respondent states that he was paid €100 per week, as shown on his pay slips with no ‘under- the- counter’ additions.

While there is significant disagreement between the parties on the sequence of events that led to the dismissal of the Complainant, it is accepted by both that on the evening of Sunday, 15 October 2017, the Complainant attempted to contact the Respondent to advise him that there were two trollies of milk missing from the holding area when he arrived to start his run. When the Complainant was unable to contact the Respondent, he contacted the Operations Manager, Mr. Patrick Carolan, who undertook to advise the Respondent. Subsequently, the Respondent texted the Complainant telling him not to go out and to say that ‘we’ are conducting a full investigation with ‘my accountant and others in your account’.

On the following day, the Respondent says that one of his drivers was advised by a café that they had not received their delivery. The Respondent states that this business was not one of his customers and he engaged a Mr. Christopher Leonard to investigate by going to that premises to seek to establish what had happened. The very brief report by Mr. Leonard, submitted that day, stated that the cafe had confirmed that they gave ‘Mark’ €1.50 per plastic 2 litres of milk and that they purchased 60/90 of these per week plus a gallon of cream, depending on trade.

The disagreements between the parties regarding events between 15 and 18 October 2017 are summarised in the arguments set out by both below.

It is common cause that on 18 October, the Complainant’s brother told him that the Respondent wished him to hand in fobs and keys. This prompted the Complainant to text a question to the Respondent to ask ‘Am I sacked?’ to which he received a reply to say ‘Well unless you can explain where all the milk was going because it wasn’t paid back to me, me and Patrick have been watching your account for over 2 months’.

The Complainant took this to mean that he was dismissed.

The Complainant lodged a complaint under the Act with the WRC. The AO decided that the Respondent had not met the obligation on him to apply fair procedures and, in particular, had failed to comply with the process set out in S.I. No. 146/2000-Industrial Relations Act 1990, (Code of Practice on Grievance and Disciplinary Procedures). However, he found also that the Complainant’s conduct had ‘contributed in no small way’ to the termination and that the dismissal was ‘substantially attributable to the acts and conduct of the employee. He decided to award six weeks’ pay of €600 in compensation.

This case is the Complainant’s appeal of the decision by the AO.

Respondent’s arguments

The Respondent accepts that there was a failure of process in the dismissal and did not appeal the decision of the AO, despite not agreeing with it.

The system that operated for all drivers was one where they called in their order to a call centre and the product was delivered, for collection, to a chilled facility.

On or around June 2017, the Complainant was questioned as to the large amounts of plastic 2 litres, gallons and orange juice being used on his route. In July, the Complainant, the Respondent and the Operations Manager, Mr. Carolan, viewed CCTV and the Complainant stated that it must have been his nephew, who was assisting him, who was taking plastic 2 litres off another order to bring home. He volunteered to cease bringing his nephew.

In August, the Respondent and Mr. Carolan questioned the Complainant regarding the amount of milk being sold against the amount of money being collected. The Complainant had no answer.

On 15 October 2017, when the Complainant complained of missing stock, the Respondent contacted Mr. Carolan who stated that no stock was missing as he had checked the orders against the delivery docket the previous day. The Respondent advised the Complainant to park the van until the matter was investigated.

The following day, a café stopped another driver to complain that they had not received their delivery. The driver contacted Mr. Carolan, who brought the matter to the Respondent’s attention. The cafe was not a customer of the Respondent. Therefore, it was decided to conduct an investigation. The services of a former trade union official, Mr. Christopher Leonard, were engaged to question the owner of the cafe. He submitted his report that day, (see ‘Background’ above).

On 17 October 2017, the Respondent made four attempts to contact the Complainant by telephone. The Complainant eventually rang back and the Respondent told him that they needed to meet and that Mr. Leonard and Mr. Carolan would need to attend. The Respondent suggested to the Complainant that he bring another party.

The Respondent informed the Complainant that over €10,000 worth of stock was missing over the last year. The Complainant apologised and conceded ‘that he had taken the stock but could not repay’ the Respondent. The Complainant begged for his job and the Respondent said that they would need to discuss how the money could be paid back. The Complainant told the Respondent that there was no way that he could repay the money and told the Respondent to ‘f**k off and stick (your) job’.

Mr. Carolan met the Complainant subsequently and handed him a letter while suggesting that ‘we’ all get together and work something out, to which the Complainant replied,’ not a chance am I paying’.

On 18 October 2017, the Respondent and the Complainant spoke at length and the Complainant conceded that he was selling stock. The Respondent mentioned the café and the fact that they were buying in excess of €100 per week of milk, cheese and cream. The Complainant apologised and said that he did not think it was that much.

At this point, the Complainant responded in a positive manner but he refused subsequently to meet.

Telephone calls and requests were made to the Complainant in an effort to come up with a workable solution and to save the business that the Complainant carried out for the Respondent, the loss of which has since cost the Respondent some €27,000 sales per year as no one has replaced the Complainant. The Respondent was agreeable to a solution that involved re-payment of money but within days the Complainant sought his P45 from the Respondent’s Accountant.

The Respondent initiated a swift, non- biased investigation and Mr. Leonard ascertained facts and the Complainant failed to meet as requested to see if a solution could be found. Therefore, while the Respondent does not agree with the AO’s decision in its entirety, it was fair and balanced for all concerned.

Complainant’s arguments

While the AO found that the Complainant had been dismissed unfairly, undue weight was placed on alleged misconduct by the Complainant when there was no proper and/or independent verifiable evidence produced by the Respondent to justify such a finding. The AO did not appear to have given adequate regard to the complete denial of allegations by the Complainant and/or inconsistencies in the evidence given by the Respondent and/or his witnesses at the WRC hearing.

On 15 October 2017, the Complainant commenced his shift earlier than usual as there was an impending storm. Upon arrival at the holding area, the Complainant found that two trollies of milk were missing from his order. The Complainant attempted to contact the Respondent. As there was no response, he contacted the Operations Manager, Mr. Carolan. The Complainant then received a series of texts, the final one of which stated that a full investigation of his account was being conducted. He was instructed not to go out but he understood that he was to resume work as usual the next Thursday. Later that evening he missed 4 calls from the Respondent but, otherwise, there was no further communication with him.

On 18 October 2017, the Complainant’s brother, who also worked for the Respondent, told him that the Respondent wanted him to hand in fobs and keys. As he was surprised by this, the Complainant texted the Respondent to ask ‘Am I sacked?’ to which he received a response, ‘Well unless you can explain where all the milk was going because it was n’t paid back to me, me and Patrick have been watching your account for over 2 months’.

This was the first time that the Complainant learned that there were alleged discrepancies with his stock and, in effect, he was being accused of stealing. It was the first time that he learned that the Complainant had been monitoring him for 2 months. The Complainant understood this text to confirm his dismissal.

The Complainant received his P45 subsequently and denies any suggestion that he asked for it. The date of dismissal shown on the P45 is 14 October 2017, the day before the Complainant drew attention to missing trollies of milk.

The Complainant was left in no doubt about the termination of his employment.

The Respondent did not have a genuine or reasonable belief, based on reasonable grounds, i.e. an adequate investigation and disciplinary process, that the Complainant was guilty of misconduct. No allegations were put to the Complainant while he was being monitored. The Respondent suggests misappropriation of up to €10,000 worth of stock, (which is denied) yet failed to provide any documentary evidence to support this. No such independent, verifiable evidence was produced at the WRC hearing. It was conceded by the Respondent that one of the documents submitted to the WRC post-dated the termination of the Complainant’s employment.

The Complainant was never advised of a complaint from the cafe, he was never told of the appointment of Mr. Leonard nor did he ever meet him prior to his dismissal. The short, undated letter from Mr. Leonard at the WRC contained an original signature and ‘bona fide’ questions arise about the authenticity of any purported investigation that the Complainant contends never took place. Furthermore, the specific allegation concerning the cafe, (which is denied), was not disclosed by the Respondent to the Complainant’s Solicitor, despite correspondence regarding the dismissal. In this correspondence, the Respondent contended that he had CCTV evidence but at no stage was this ever produced.

The Complainant was denied fair procedures. He refutes any suggestion that any effort was made by the Respondent or his representatives to meet with him between 15 and 18 October 2017 to discuss the matter. The Complainant denies vehemently that he made any admissions in relation to alleged misappropriation of stock.

The Complainant denies receiving letters, produced at the WRC hearing, the first of which, dated 24 July 2017, allegedly put him on notice that he was under investigation and the second of which, dated 19 October 2017, purports to talk about having a meeting. The Complainant saw these letters for the first time at the WRC hearing.

While the Complainant refutes any allegations of misappropriation, it is not for the WRC or the Court to determine innocence or guilt. The test is that of the ‘band of reasonable responses’ as set out inBank of Ireland v James Reilly (2015) IEHC 241, which was elucidated further inHennessy v Read and Write Shop Ltd UD 192/1978.The Respondent took no steps to investigate matters and the Complainant was not subject to any disciplinary process prior to his dismissal, so his dismissal was not a reasonable act by his employer. The legal principles set out inSamuel J Frizelle v New Ross Credit Union (1997) IEHC 137regarding the premises that must be established to support the decision to dismiss for misconduct were entirely absent.

Section 7(2) of the Act requires that regard be had to the conduct of both the employer and the employee. The AO placed too much emphasis on the alleged conduct of the employee to the detriment of consideration of the employer’s conduct.

Witness evidence

Mr. Philip Smith

Mr. Smith, the Respondent, gave evidence that he became aware of missing milk in May or June 2017 and that he spoke to the Complainant and viewed CCTV with him that established it was missing from the Complainant’s allocation. The Complainant suggested that the missing stock was due to his nephew, who was assisting him, taking some home and it was agreed that this would stop.

On 15 October 2017, when the Complainant reported missing stock, the Operations Manager, Mr. Carolan, confirmed to the Respondent that, having checked, there was nothing missing from the Complainant’s order.

In a text exchange, the Respondent told the Complainant not to go out that night and told him that his account was being examined.

On the following day, one of the Respondent’s drivers, Mr. Andy O’ Brien, was making a delivery when he was approached by somebody in a cafe who said that they had not received their delivery. This was conveyed to the Respondent who was surprised as the cafe was not a customer.

On the advice of Mr. Carolan, the Respondent engaged Mr. Leonard, a former trade union official, to make enquiries as he was clearly impartial. Mr. Leonard was asked to find out from whom the café in question got their milk and to establish why they contacted the Respondent when he did not have them on his books.

Mr. Leonard reported that they got their milk from ‘Mark’.

The supplier advised the Respondent to get their fob back from the Complainant until the matter was clarified.

The Respondent made a number of attempts to contact the Complainant, who eventually called back. There was a heated telephone conversation in which the Respondent stated that the loss to him for stock delivered to the cafe was €120 per week. The Complainant refused to come in for a conversation. The Complainant rang back subsequently. He apologised to the Respondent for his actions and stated that he was not in a position to pay back the money concerned. The conversation became heated and the Complainant told the Respondent to ‘f**k off and stick your job’.

Within days, the Respondent’s Accountant told the Respondent that the Complainant was demanding his P45 and had asked that the dismissal date be back-dated for social welfare purposes.

The witness stated that he had an interest in retaining the Complainant as he was the only person who knew the route and when he left he could not be replaced. Therefore, the Respondent was willing to work out some arrangement for missing money to be re-paid that would allow the Complainant to keep his job.

Under cross examination and in response to questioning from the Court, the witness re-stated that the cafe had named the Complainant as the source of their milk delivery but he accepted that they had just given a name to Mr. Leonard and had not pointed to any visual identification.

The cafe had stated that they received cream and cheese also and it was put to the witness that the Complainant did not deliver these products. He stated in response that the Complainant had easy access to these products.

The witness denied that the letter of 19 October 2017 showed any pre-determination of the outcome on his part and, in reply to a question, he stated that he had requested a return of fobs and keys pending an outcome of an investigation and not because he had decided to dismiss the Complainant.

When it was put to the witness that the Complainant denied going to his Accountant to seek his P45 and that, in fact, it had been posted to his home, the witness stated that this had not been done with his authority.

The witness stated that he had ‘crossed swords’ with Mr. Leonard, the Investigator, in the past and did not expect any favours from him and, therefore, he had accepted Mr. Carolan’s advice that Mr. Leonard’s impartiality was necessary to establish the truth in a non- biased fashion.

The witness stated that his company did have grievance and disciplinary policies but he had been trying to resolve this matter rather than deal with it on a disciplinary basis.

Mr. Mark Leddy

Mr. Leddy, the Complainant, stated in evidence that he had never received the letter that was allegedly sent on 24 July 2017, (the Court clarified that the Respondent’s position is that this was issued to all delivery staff).

The witness denied ever having a conversation regarding missing stock in June 2017 or at any time prior to his dismissal. He denied ever viewing CCTV with the Respondent or to making the comments alleged by the Respondent regarding his nephew.

The witness stated that on the evening of 15 October 2017 he was out early as instructed by the Respondent due to the impending ‘Storm Ophelia’. He stated that two trollies were missing and that he attempted to contact the Respondent. When he could not contact him, he contacted Mr. Carolan.

He was instructed not to go out but he did not take this to mean that he was under suspicion and he thought that everybody was being looked at due to missing stock. It was not the first time that this problem had arisen.

The witness stated that 10 to 12 people had access to this stock. He confirmed that he did not deliver cream or cheese but said that all who had access to the milk stock also had access to these.

The next time the witness heard anything was when he was asked to hand back keys and fobs.

The witness denied having any conversation with the Respondent or his representatives between 15 and 18 October 2017. His text that asked ‘Am I sacked?’ was a reaction to being asked to hand back the keys and fobs.

The witness stated that he had no awareness of what allegedly transpired with the named café and that he was unaware, and had not been made aware, of any investigation by Mr. Leonard whom he was not asked to meet.

The witness was at a loss to understand why this cafe would refer to him as he never delivered to that area on Mondays.

The witness stated that it was untrue to say that he contacted the Respondent’s Accountant on 18 October 2017. He stated that he made contact some 4 or 5 weeks later to seek his P45 and he denied any request to back-date the date of his dismissal.

Under cross- examination and in response to questions from the Court, the witness re-stated that there were 2 trollies of milk missing on 15 October 2017. When it was put to him that the supplier, Glanbia, could show that this was not the case, the witness challenged this and asked for proof.

The witness denied that he needed milk to be missing so that he could sell it and re-stated that he did not deliver to the relevant area at week-ends.

When he was asked if the Respondent had invented the calls that he said took place with the Complainant after 15 October 2017, the witness replied ‘yes’.

When asked if Mr. Leonard was making up what he had reported, the witness stated that he did not know as he never spoke to Mr. Leonard.

The witness said that he could not speak for the cafe either.

In response to questions, the witness reiterated his testimony that he had not contacted the Respondent’s Accountant on 18 October 2017 and had never asked for his dismissal date to be back-dated.

The witness said that his relationship with the Respondent was conducted mainly through Mr. Carolan and he had little direct contact with the Respondent. He stated that some years previously, around 2011 or so, the Respondent had sacked him on a Friday night and gave him his job back on a Sunday on less pay, (the Respondent stated that he had no recollection of this).

The witness re-stated that he had never made deliveries to the named cafe and he denied that any of the conversations alleged to have taken place between 15 October 2017 and his dismissal on 18 October 2017 had ever taken place. In particular, he denied ever admitting to wrongdoing or to begging for his job.

The applicable law

Unfair Dismissals Act 1977

Definitions

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;

6.---(4) Without prejudice to the generality of subsection (1) of this section, 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.

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

Deliberation

It is accepted by the Respondent that he failed to undertake a disciplinary process in the instant case. The Court welcomes the fact that no attempt was made to suggest otherwise. However, notwithstanding attempts on the Respondent’s behalf to suggest that this was a mere technical procedural breach, the Court has to view this as nothing less than a fundamental breach of the Complainant’s right to be heard. The concept of‘audi alteram partem’or the right to be heard is a principle of natural justice, which is protected by Bunreacht na hEireann. It is a protection against arbitrariness and the imposition of penalty without due process.

In the instant case, the Respondent believed that there was a basis for an allegation of theft. If theft was established, the Respondent would have a justification for dismissal. No employer can be expected to tolerate theft. However, to dismiss an employee because of theft requires that any such allegation is investigated properly, facts are established, these facts are put to the employee, he is afforded the opportunity to put his version of events and then, and only then, can a disciplinary process be carried out in which full account must be taken of all aspects, including the points made by the subject of an accusation. At all stages, an employee is entitled to be represented and to ask questions of anybody giving evidence.

In the instant case, there was a failure by the Respondent to carry out anything more than a cursory investigation of the allegation against the Complainant, an ‘investigation’, if it can even be deemed thus, that was carried out without the knowledge of the Complainant by somebody who never even met the Complainant. In his finding, that is the subject of this appeal, the AO noted the failure of the Respondent to comply with the process set out in S.I. 146/2000-Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures). The Court goes further. The failures in the instant case are not mere explicable errors of omission due to a lack of knowledge regarding the technical requirements of a Statutory Instrument. It is worth referring to the principles that underpin that Statutory Instrument for they are the basic rights that any employee who is subject to an allegation is entitled. They were set out clearly by the High Court inSamuel J Frizelle v New Ross Credit Union (1997) IEHC 137as the essential requirements that must be established to support a decision to dismiss for misconduct.

They are as follows-

1 The complaint must be abona fidecomplaint unrelated to any other agenda of the Complainant.

2 Where the Complainant is a person or body of intermediate authority, it should state the complaint factually, clearly and fairly without innuendo or hidden inference or conclusion.

3 The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4 The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in light of the explanation offered.

5 The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

The High Court went on to summarise, as follows-

‘Put very simply, principles of natural justice must be unequivocally applied.’

In light of this unequivocal statement of an employee’s basic rights in such cases and the circumstances of the instant case, it is clear that the Respondent has no grounds on which to justify a dismissal.

The Court heard argument that the Complainant’s actions were a contributory factor in the decision to dismiss and, indeed, the Complainant’s appeal was based on an argument that undue weight was given to this point by the AO. It is a well established principle of this Court that where an employer adheres to correct procedures and where an employee is afforded their rights in an investigation of alleged wrongdoing and any subsequent disciplinary process, the Court will not substitute its views for those of an employer unless it judges that such views are outside the band of reasonableness. It follows, therefore, in the circumstances of the instant case where there were no meaningful procedures, it is not for the Court to make a judgement regarding allegations that were never investigated properly and, therefore, have no status other than that of allegations. The breach of the rights of the Complainant render as unreasonable both the conclusion of the Respondent that the allegations were proven and the consequential dismissal.

In considering the remedies available, the Court notes that the Complainant is now in alternative employment and, therefore, the Court does not consider that re-instatement or re-engagement are appropriate remedies.

In awarding compensation, given the circumstances, the Court might reasonably be expected to look to maximise the award, subject to the constraints of the Act. However, having regard to the totality of s.7 of the Act, the Court has to take account of two factors that became clear in the course of the hearing.

Firstly, the Respondent gave evidence of attempts to reach a resolution as an alternative to disciplinary action. The Court found this part of the Respondent’s evidence to be credible, not least because a consequence of the dismissal of the Complainant was a loss of business for the Respondent. The Complainant, in refusing to engage with the Respondent with a view to achieving that outcome, played some part in the dismissal that then occurred.

Secondly, and of more significance, is the requirement on the Court to have regard to the Complainant’s efforts to mitigate his losses. The Court was advised that the Complainant was out of work after his dismissal for a period of 23 months, from October 2017 to September 2019. The Court was told that he had applied for various jobs but only two job applications were submitted in support of this assertion. This is completely inadequate. The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced and the Court has no alternative but to conclude that insufficient efforts were made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of s.7(2) of the Act, this must be reflected in the compensation to be awarded. The Court notes the argument made on behalf of the Complainant regarding his lack of formal qualifications but does not accept that this excuses what appear to have been little more than token attempts to seek alternative employment.

In all the circumstances, the Court believes that an award of €1000 in compensation is warranted.

Determination

The Decision of the AO is varied, as set out above.

Signed on behalf of the Labour Court



Tom Geraghty
DC______________________
13 December 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.