Complainant

Respondent

Anonymised Parties

Caretaker

Local Authority

Representatives

Niall Phillips SIPTU

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-00014803-001

05/10/2017

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

CA-00014803-002

05/10/2017

1.      Adjudicator, the case before you today has been referred under the Unfair Dismissals Acts, 1977 to 2007 and the Minimum Notice & Terms of Employment Acts, 1973 to 2005. This dispute pertains to the following issue: that the complainant (hereafter referred to as “the complainant”) was dismissed by his employer (hereafter referred to as “the respondent”) on the 2nd May 2017 by way of letter for serious misconduct for engaging in work activities not related to the respondent whilst on paid sick leave from his employment with the respondent as Caretaker. (Appendix 1, Letter of Dismissal)

2.       The complainant denies the allegations and refutes the findings and believes that he was unfairly dismissed. The complainant is seeking re-instatement.

3.       The complainant did not receive his statutory notice entitlements as per the Minimum Notice and Terms of Employment Act.

Background

4.       Adjudicator, the complainant had been employed by the respondent as Caretaker since 26th April 2011 until his dismissal on the 2nd May 2017 and worked a 39 hour week and received a gross fortnightly wage of €1,220.

5.       The complainant was invited by the respondent to a disciplinary meeting, which took place on the 15th February 2017 under the respondent’s Disciplinary Policy and Procedures. This meeting was chaired by Mr PM, and was in relation to an allegation of ‘gross misconduct’. It was alleged that; “Whilst on paid certified sick leave from your employment as caretaker you were engaged in work activities not related to the respondent”.

6.       Following this meeting the respondent issued a letter to the complainant, dated 16th February 2017 (Appendix 2), confirming that he was being placed on ‘administrative leave’ on full pay commencing on Thursday 16th February 2017 until the disciplinary process was complete.

7.       Statements from Mr DC and Mr DoD presented to the complainant at the meeting on the 15th February, claim that on Wednesday 8 February 2017 both went X Estate in Dromahair, Co. Leitrim arriving there at 09:45am. (Appendix 3) Both persons allege that they observed the complainant going in and out of one of the housing units, taking measurements outside the front door and putting together what they believed to be the rods for a chimney sweeping brush. Both persons state that it was apparent to them that he, the complainant, was working on one of the houses.

8.       It would appear from the witness statement that the house in question was one of a number of properties that were being renovated by the local County Council at that particular estate. The statement goes on to confirm the witnesses noticed the complainant going to a white Ford Transit van parked opposite the house and having approached the complainant found him removing an industrial vacuum cleaner from the rear of the van. Mr DC asked to speak to the complainant and allegedly reminded him that he, the complainant, was on certified sick leave at that time, that he was clearly working on the house and that this was a serious breach of the sick pay scheme.

9.       The respondent’s prepared notes for the disciplinary meeting held on the 15th February 2017 (Appendix 4) show that the respondent was aware that the complainant may have been involved with a building company, ‘JMcC Building Contractors, when, on or about the 21st November 2016, it is alleged that Mr PN from the neighbouring   local authority contacted Mr G.O.D (the respondent Local Authority) asking about the above referenced building company and, in particular, naming the complainant.

10.   Following the investigation and disciplinary process, Mr PM  confirmed to the complainant that he was “recommending the termination” of his employment and that he had ten working days from the date of the letter by which to appeal his recommendation. (Appendix 5)

11.   The complainant appealed this decision on the 13/3/17. (Appendix 6)

12.   An appeal hearing took place on the 25th April 2017, which was heard by Mr ML. The complainant was represented by his Shop Steward,. Mr ML agreed with Mr PM’s recommendation to terminate the complaint’s employment and dismissed him by way of letter dated 2nd May 2017. (Appendix 1)

13.   This complaint was submitted to the WRC Adjudication Services on the 5/10/17. (Appendix 7)

The Complainant’s case

14.   Adjudicator, the claimant believes that he was unfairly dismissed by the respondent for the following reasons: (a) that the decision to dismiss was unfair, unreasonable and grossly disproportionate. (b) Fair procedures were not followed in effecting the termination.

15.   In or around the 18th January 2017, the complainant was involved in a road traffic accident and went on certified sick leave. At the time of the alleged incident on the 8th February 2017 the complainant was still on certified sick leave. The complainant denies that he was working as described by Mr DC and Mr DoD in their joint statement at Appendix 3. The complainant’s family had experienced a family bereavement during his certified sick leave period and he was assisting a distressed family member tidy up his home in Leitrim, when Mr DC and Mr DoD happened upon him. The complainant does not deny the account of events on that day in question but denies and vehemently rebuts the assertion that he was “working on one of the houses” at that time.

16.   In the complainant’s appeal letter at Appendix 6 he states that his doctor had advised him to “be out and about” as part of his rehabilitation so that he could return to work as soon as possible. The complainant was abiding by this recommendation and while assisting his brother in law tidy up his house was not “working” as alleged.

17.   The respondent dismissed the complainant for being “engaged in work activities not related to the respondent authority”. This charge is unclear as to where the breach was. Was the breach realised by the complainant tidying up his brother in laws house or was the breach realised on the suspicion that the complainant was being paid for the work he was seen doing? The difference is a very important one and one which the complainant believes the respondent failed to clarify and therefore failed to prove on the balance of probabilities.

18.   It is clear from the respondent’s prepared notes of the disciplinary meeting held on the 15th February 2017 at Appendix 4 that there was an awareness that the complainant was involved in his wife’s building company business but unclear as to what his role was within that company. This did not seem to be an issue for the respondent as they, along with the neighbouring authority, had engaged this company to carry out building works/repairs on houses in the local authority area. However, it would appear from the G.o D entry of the 24th January 2017 that enquiries had been made with the neighbouring local authority as to whether or not the complainant had been seen on their site. It is no coincidence that this enquiry followed hot on the heels of the complainant’s phone call to Ms.PC on the 23rd January informing her that he was going to be off sick for the week and that he would also need time off to attend to matters in England following the suspicious death of his brother in law.

19.   The entry by Mr.D.O. D on the 25th January 2017 clearly shows that he personally set out on a path to trap the complainant, rather than contacting him to discuss concerns which had recently arisen. This act of snaring the complainant is further supported when at the 26th January 2017 entry Mr O’D.O.D states that he and Mr DC attended at the site in the neighbouring county that afternoon and on the following day but that “there was no activity there” on either day. Further discussions followed between Mr D.O D, Mr DC and the neighbouring County Council in relation to the complainant’s relationship with J McC contractors and when he was seen on site, etc. It therefore appears clear that Mr D.O.D and Mr DC were stalking the complainant when they found him “working” at the house on the 8th February 2017 and that their minds had already been made up and their speech prepared when they confronted him. This is apparent when one reads what ‘D said to P’ at Appendix 3: - P was at that time on certified sick pay. -That he was clearly working here at the moment. - This was a serious breach of the sick pay scheme. - It is considered serious misconduct. - That Roscommon County Council will be in contact with him about it. - That he would be entitled to all the usual representation in regard to it. - D.O.D reiterated that HR would be in contact with him. Neither Mr D.O.D or Mr DC or the respondent for that matter ever verified whether or not the house that the complainant was attending to was indeed a family members home or belonging to the neighbouring local authority.

20.   Adjudicator, it is clear that the respondent sees the disciplinary procedure as a stick by which it can beat its employees. Rather than bringing the issue to the complainant’s attention as soon as concerns came to light, the respondent and its agents set about trying to trap the complainant and by so doing had already decided his fate. The complainant’s account of the events on that day were completely ignored and he was denied fair procedure and natural justice.

21.   The complainant had no live disciplinary sanctions on his file at that time and the respondent, without establishing whether or not the complainant was partaking in other paid work or not, decided to dismiss him when there were other options open to them under their disciplinary procedures. The respondent acted unreasonably throughout the process from the initial digging exercises with the neighbouring County Council right through to the complainant’s dismissal.

22.   The complainant did not receive a copy of the minutes from any of the disciplinary procedural meetings/hearings, including the appeal hearing and was not provided with an opportunity to cross examine the witnesses, it was their evidence that appears to have been detrimental to the complainant.

23.   The complainant found new employment some 6 months after his dismissal, working as a site manager on a building site.

Conclusion

24.   Adjudicator, the complainant believes that he was unfairly dismissed and respectfully requests that you find in his favour and grant him reinstatement.

25.   The complainant was also entitled to statutory notice (4 weeks) and requests that this be awarded to him also.

26.   The claimant denies that he was working while on sick leave and believes that the respondents disciplinary process was flawed for the reasons set out above and while he does not believe that the grounds for his dismissal amount to substantial grounds he nevertheless believes that there were other sanctions open to the employer rather than dismissal especially when one considers the fact that he had no live formal disciplinary sanctions on his file.

27.     It was submitted by the union that the claimant was denied access to the minutes of meetings that took place under the disciplinary code and that the records were only eventually produced on foot of an FOI request post the hearing. It was submitted that he was also denied access to the statements by DoD and DC with respect to the site visit on the 8th.Feb. 2018.It was argued that Mr. DC ‘s own account of his exchange with the claimant on that date indicated that MR. DC was already prejudiced with respect to the claimant and had formed the view without investigation that the claimant was guilty of misconduct.

1.0         Introduction

1.1       Adjudicator, the case before you relates to a complaint made by a former employee of the respondent.   The complainant is seeking adjudication by the Workplace Relations Commission under the provisions of Section 8 of the Unfair Dismissals Act 1977 and Section 11 of the Minimum Notice and Terms of Employment Act, 1973.

2.0          Background

2.1              The complainant, commenced employment in a permanent capacity as a Caretaker with the respondent on 26th April, 2011. The complainant signed his Contract of Employment on 26th May, 2011 - Appendix 1.

2.2          The circumstances leading to the termination of the complainant’s contract of employment arose from an allegation that whilst on paid certified sick leave during the period from 23rd January, 2017 to 14th February, 2017 from his employment as Caretaker he was engaged in work activities not related the respondent company business. Medical certification had been submitted by the complainant to cover the period in question - Appendix 2. The process was conducted under the respondent’s Disciplinary Policy and Procedure – Appendix 3.

2.3         The allegation against the complainant was investigated by two Senior Officers of the respondent. They carried out a fact finding exercise with the aim of determining objectively and fairly what was likely to have occurred in the circumstances.

2.4          The complainant was provided with a van by the respondent for the duration of his employment and in 2016 his van was repeatedly visiting a number of locations in Roscommon, Sligo and Leitrim during his working day. These locations had nothing to do with his work as a Caretaker. The locations in Roscommon corresponded with locations where housing refurbishment contracts had been awarded to J McC, Building Contractors, (same address as the complainant). On or about 21st November 2016 a call was received by a senior officer in the respondent local authority from a member of staff in the neighbouring County Council relating to contracts awarded to JMcC, Building Contractors by the neighbouring local authority (at that time the respondent had also awarded contracts to the same company). The representative from the neighbouring local authority stated that the complainant was their project contact for housing projects but he could not be contacted and enquired as to whether the respondent County Council was experiencing the same difficulties. On 24th January 2017 contact was made by the respondent to the neighbouring to enquire if the complainant had returned to the sites in the neighbouring county and he was advised that the complainant had been back on site and was finishing out the 2016 project work, more or less on his own. – Appendix 4

2.5          On 25th January, 2017 during a further telephone conversation it was confirmed that the complainant was the adjoining County Council’s main point of contact for J McC (same address as the complainant), that he attended most or all of the site meetings and that he carried out work directly on the site. – Appendix 5.

2.6          On 8th February, 2017 the two senior members of staff of the respondent who were investigating the allegations visited the Estate in the neighbouring county and witnessed the complainant carrying out works to one of the houses. During a conversation with the complainant at the site, the complainant was informed by the staff members of the respondent that:

·         Whilst on paid certified sick leave from the respondent and having submitted medical certification to this effect he was also working on a contract for the neighbouring County Council

·         This was a serious breach of conditions governing the Sick Pay Scheme – Appendix 6

·         It was considered serious misconduct;

·         The respondent would be in contact with him in relation to this serious breach of contract

·         He would be entitled to be represented in forthcoming proceedings – Appendix 7

2.7          On 9th February, 2017 a notice issued to the complainant advising him that the respondent had appointed a Senior Executive Officer to carry out a disciplinary process in relation to the allegations against him and invited him to an interview on 15th February, 2017 at which the question of disciplinary against him in accordance with the respondent’s Disciplinary Procedure would be considered. In the notice he was advised that he was entitled to be accompanied at the disciplinary interview by a colleague or a recognized trade union representative in accordance with procedures and a further copy of the Disciplinary Policy and Procedure was attached to the notice – Appendix 8

2.8          At the disciplinary interview on 15th February, 2017 the complainant was accompanied by his union representative. Details of the allegations and evidence were put to him and his representative at the meeting and he was informed that he would be given further time to consider the evidence and that a follow up meeting would take place on 21st February, 2017 – Appendix 9.

2.9          On 16th February, 2017 the complainant was formally notified to attend a further disciplinary meeting on 21st February, 2017 and was advised of his right to representation – Appendix 10.

2.10        A further disciplinary meeting took place on 21st February, 2017 attended by the complainant and his union representative – Appendix 11.

2.11        Following the disciplinary interview on the 21st February, 2017 it was concluded that on the balance of probability that the complainant was engaged in work activities not related to the respondent whilst on paid certified sick leave from the Council and that this constitutes serious misconduct under the respondent’s Policy and Procedure and that the appropriate sanction was dismissal – Appendix 12.

2.12       On 23rd February, 2017 a notice was issued to the complainant confirming that having considered all the relevant evidence including statements made at the disciplinary interviews it was considered that an act of serious misconduct had taken place and the appropriate sanction was dismissal and termination of employment was recommended. The complainant was also advised of his right to appeal the internal process to a nominated Director of Services in the respondent’s employment within ten working days of the date of the letter issued to him 23rd February 2017 – Appendix 13.

3.0          Internal Appeal

3.1          On 3rd March, 2017 a letter was received from the complainant confirming he wished to appeal the outcome of the disciplinary process and that his grounds for appeal would be forwarded in due course – Appendix 14.

3.2          On 6th March, 2017 a notice was issued to the complainant by the Appeals Officer advising him that the appeal must be submitted within ten working days of 23rd February, 2017 and that the appeal must specify the grounds for making the appeal. The Appeals Officer also informed the complainant that he would allow further time for submission of the grounds for the appeal and that this submission must be submitted no later than 16th March, 2017 and if the grounds for the appeal were not presented before that date the Council would proceed to implement the recommendation to terminate his employment – Appendix 15

3.3          On 15th March, 2017 the complainant submitted details of the grounds of his appeal – Appendix 16.

3.4          On 28th March, 2017 the Appeals Officer issued a notice to the complainant requesting him to attend the appeals hearing scheduled to take place on 13th April, 2017. The notice also advised him of the right to representation and the purpose of the appeals hearing – Appendix 17.

3.5          The complainant sought that the hearing be deferred due to family matters in the UK. The Appeals hearing was then rescheduled to 25th April, 2017.

3.6          The appeal was heard on 25th April, 2017 and each of the grounds of the appeal were heard individually by the Appeals Officer – Appendix 18.

4.0          Outcome of Internal Appeal

4.1          Following the appeal hearing the Appeals Officer, having taken into account all of the evidence including the grounds for appeal, upheld the recommendation to dismiss the complainant from his employment with effect from 2nd May, 2017.

4.2          On 2nd May, 2017 a notice was issued to the complainant confirming the outcome of the claimant’s appeal and confirming that his contract of employment was terminated effective from 2nd May, 2017 – Appendix 19

4.3          Further notice was issued to the complainant on 8th May 2017 attaching a copy of the order confirming termination of the complainant’s employment effective from 2nd May 2017 – Appendix 20

5.0      Conclusion

5.1          The complainant was well aware of his actions when he was working on a contract for a neighbouring local authority whilst on paid certified sick leave from the respondent. The investigation, disciplinary process and internal appeal were conducted in accordance with the principles of natural justice and fair procedures under the respondent’s agreed procedures. It was determined that the complainant’s actions constituted serious misconduct under the provisions of Clause 12.1 of the respondent’s Disciplinary Policy and Procedure and breach of contract. Under the procedures if a disciplinary process upholds a case of serious misconduct the normal consequences will be dismissal. As a consequence of the complainant’s behaviour and conduct the employment relationship and trust had irretrievably broken down. In the circumstances the claimant was not unfairly dismissed and his contract was terminated in accordance with the terms and conditions of his employment and in accordance with the provisions of The Minimum Notice and Terms of Employment Act 1973. Section 8 of the said act states Nothing in this act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

5.2          On the basis of the foregoing Roscommon County Council requests the adjudicator to find in its favour in this case.

It was submitted by the respondent’s representative that the claimant was well aware a GPS system had been installed in the van provided to him by the respondent. It was submitted that in 2016, the claimant was repeatedly visiting locations where the JMcK contractor had business. Arising from an industrial relations dispute it emerged that there was an agreement that the GPS system could not be relied upon in the context of disciplinary hearings. It was contended that the Council personnel were on a fact finding mission and there was no question of the claimant being stalked .The council officials met the claimant on site on the 8th.Feb. 2017 , they spoke to him and there was no evidence of anyone else being there .It was submitted that the claimant had a long history pf not being where he was supposed to be. There had been no prejudgement and the council had a duty to pursue breaches of their own procedures. It was contended that it emerged from telephone conversations with officials from neighbouring local authorities that the claimant was involved in projects for the neighbouring local authority.

I have reviewed the evidence presented at the hearing and the submissions made by the union and the employer. I accept the union’s contention that the claimant was not furnished with meeting records and was not given access at the initial stages of the process to the statements of Messrs. DC and D.O.D.I further accept that the respondent’s own record of the exchanges with the claimant on the 8th.February 2017 do indicate that the respondent’s officials had already made their minds up that the claimant was guilty of serious misconduct. I further note that Mr.PM failed to revert to the claimant and the union on his further enquiries with Mr.DC and Mr.D.O.D post the dismissal meeting   - clearly their answers influenced the decision to dismiss and the claimant should have been offered an opportunity to comment on their answers to Mr.PM. For all of the foregoing reasons, I find the process was procedurally flawed and the dismissal was unfair. However, I have concluded on the basis of the evidence presented that the claimant contributed significantly to his own dismissal and I have taken this into account in the quantum of the award. I require the respondent to pay the claimant €12,500 compensation. As I have deemed the dismissal to be unfair, I uphold the complaint under the Minimum Notice and Terms of Employment Act and require the respondent to pay the claimant his statutory notice entitlement.