Complainant

Respondent

Anonymised Parties

An Employee

A Bus Company

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-00017560-001

21/02/2018

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

CA-00017560-002

21/02/2018

The Complainant was employed by the Respondent as a Part-time School Bus Driver. The Complainant’s date of commencement of employment is disputed by the parties. While the Respondent claims he started in 2002, the Respondent is of the view his employment did not commence until 2004.  

However, it is accepted by all sides that the Complainant worked until 25 August 2017, on which date his contract of employment was terminated.

Background:

According to his Trade Union representative, the Complainant received notice, by way of a letter dated 2 August 2017 from the Respondent’s Services Manager, that he was to attend a disciplinary hearing at a date to be confirmed. According to the notification, the issue related to theft of company property.

According to the Complainant’s evidence, the hearing, which took place on 15 August 2017, was conducted by the Respondent’s Services Manager. The Complainant further stated that, at the hearing, he was shown CCTV footage relating to his removal of used wheel rims from the Respondent’s premises on 23 July 2017.

The Complainant denied that he took these parts. Rather, he stated, in evidence, that he had prior permission from the Garage Foreman to do so. The Complainant also contended that in removing the parts in question, he did so in an open and transparent manner.

The Complainant received a letter dated 18 August 2017, from the Services Manager indicating that, “following an investigation” he was found to be responsible for theft and that his contract was terminated.

Complainant’s Arguments:

CA-00017560-001: Unfair Dismissal:

The Complainant’s representative stated that the Respondent’s investigation process was unfair, unreasonable and contrary to the provisions of Section 6 (7) of the Unfair Dismissal Act 1997. In this regard, it was submitted, on behalf of the Complainant, that, in this case, the Respondent adopted a two-stage process. In support of their position in this regard, the Complainant’s representative pointed to the letter of 18 August 2017, in which the Services Manager stated that the Complainant had been found responsible for the theft “following an investigation”.

It was submitted on behalf of the Complainant, that the Respondent’s decision to adopt a two-stage approach without separating the investigator from the disciplinary decision-maker meant that the process comprised of an investigation into the facts conducted by the Services Manager, following which he issued a decision to institute disciplinary procedures against the Complainant. The Services Manager then proceeded to conduct the disciplinary procedure, the outcome of which was a decision to dismiss.

The Complainant’s representative stated that it was not possible, in those circumstances, for the Services Manager to provide the level of impartiality required to deliver a fair procedure. It was further submitted that no reasonable employer would have dismissed the Complainant on foot of such a process.

In addition to the above, the Complainant contends that, given the Respondent’s decision to conduct a two-stage process, i.e. an investigation followed by a disciplinary hearing, the appropriate role of the investigator was solely to make findings of fact. The Complainant pointed out that no report of the Services Manager’s findings of fact was ever provided to him, which, in turn, deprived him of the to the opportunity to review and/or dispute those findings. The Complainant further contends that reliance on the outcome of that investigation by the Services Manager in coming to his decision to dismiss was, therefore, itself unfair, particularly as he presumably had the report of the investigation available to him during his deliberations.

Finally, in relation to his Unfair Dismissal claim, the Complainant referred to Section 6(7)(b) and Section 7 (2) of the Act, which, they claim, permits an Adjudication Officer to take regard of the failure of the employer to comply with “the provisions of any code of practice relating to procedures regarding dismissal approved by the Minister”. The Complainant contends that the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000) is one of the codes referred to in the previous quoted section from the Act. It was further contended that, as a general principle, an internal appeals mechanism must be available to employees being dismissed.

In this regard, it was stated that the Complainant’s appeal of the dismissal decision was submitted to and received by the Services Manager on 21 August 2017. However, the Complainant stated that no appeal hearing was ever heard.

CA-00017560-002: Minimum Notice:

In addition to his claim for unfair dismissal, the Complaint also submitted a complaint under the Minimum Notice and Terms of Employment Act, 1973.

The Complainant is claiming an entitlement of €7,547.70, in line with Section 4(2)(e) of the Act, in respect of pay in lieu of notice.

Background:

The Respondent stated that, on 23 July 2017, the Complainant was observed removing in excess of 20-wheel rims, which were wrapped, sealed and bound on a pallet located at the Company’s premises.

The Respondent stated that local management wrote to the Complainant on 2 August 2017, requesting him to attend a disciplinary meeting with regard to theft of Company property. The Respondent stated that, at the meeting, which took place on 15 August 2017, the Complainant had a Trade Union representative with him. The Respondent further stated that, at this meeting, the Complainant admitted that he had taken a number of wheel rims but claimed that he had permission.

The Respondent stated that the Complainant’s allegations were examined but found to be untrue. Consequently, the Respondent stated that the Complainant was advised, by letter dated 18 August 2017, that his contract of employment would be terminated after seven days and that he had the right to appeal the decision.

According to the Respondent, local management were advised by letter, dated 21 August 2017, of the Complainant’s wish to appeal the dismissal decision under the agreed Company in-house procedures covering disciplinary/grievance matters. The Respondent explained that, in line with agreed company procedures in this regard, the Complainant’s appeal would be heard by the Disciplinary Appeals Board, chaired by an independent Chairperson.

However, the Respondent stated in evidence that, due to the large number of Disciplinary Appeals and the serious illness of members of the Appeals Board, the Complainant’s appeal has not been heard to date. The Respondent further stated that appeals are now ongoing again and the Complainant’s appeal is imminent.

Respondent’s Arguments:

In conclusion, the Respondent stated that, in their view the Complainant has not been unfairly dismissed. The Respondent also stated that the Complainant has appealed the decision to dismiss and is awaiting a date for his appeal hearing.

In addition, the Respondent stated that, since the Complaint appealed the dismissal decision, he has sought legal opinion and may be taking legal action against the Respondent. It was also stated that the Complainant has requested his P45.

The Respondent stated that they had a long established agreed internal disciplinary procedure which are formulated and implemented through the Labour Relations Commission. Consequently, the Respondent indicated that the Complainant should pursue his appeal through this process prior to referral to a third party.

CA-00017560-001: Unfair Dismissal:

The Complainant was dismissed by the Respondent on the basis that he stole Company property. Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…..(b) the conduct of the employee….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are 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 for justifying the dismissal.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show the fair process and procedures were applied when conducting the disciplinary process.

In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

With regard to the case in hand, the Complainant accepted that he had removed the property in question from the Respondent’s premises. However, he contends that he had permission from his superior to do so.

Having carefully considered the evidence adduced, I am satisfied that the main aspects of the case relates to the disciplinary process itself and, in particular, the role played by the Services Manager in the investigation and disciplinary process.

A significant body of case law exists with regard to the issue of the separation of the investigation stage from the disciplinary decision-making process in the context of providing fair procedure, particularly in a process that results in the termination of an employee’s employment.

In one such case, Joseph Brennan Bakeries v Rogers (UDD1821), the Labour Court stated:

“The Court considers that the multiplicity of roles undertaken by TG [ the General Manager] in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw the procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that the within enterprise is of a nature which afforded the Respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by selection of available management level personnel to carry out the different stages of the procedure.”

The circumstances pertaining to the role of the Services Manager, in the within case, are very similar to those set out by the Labour Court above. The Services Manager appears to have been the person who investigated the allegations against the Complainant. Then, having completed that stage of the process, he proceeded to conduct the Disciplinary Hearing, in which, the documentary evidence suggests, he was the decision-maker with regard to the disciplinary sanction.

Having purportedly conducted a preliminary investigation, I find it inappropriate that the Services Manager would have then participated as the disciplining officer, on whose decision the Complainant was dismissed.

My concerns, in this regard, are further deepened by evidence provided by the Complainant, by way of a personal statement, which he presented at the Hearing. In particular, I note the Complainant’s evidence in relation to the manner in which he was advised of the upcoming Disciplinary Meeting. In this regard, the Complainant stated that, on 2 August 2017, he was called into a meeting room by the Services Manager. The Complainant stated that the Services Manager then showed him CCTV footage of him (the Complainant) lifting rims into the back of his van. According to the Complainant, the Services manager stated, inter alia, that he (the Complainant) had been “caught stealing rims” and that “they are looking for your head upstairs”.

I note that the Respondent contested some issues in the Complainant’s personal statement, as provided at the Hearing and suggested that these issues were best dealt with at the Appeal Hearing. However, notwithstanding this, I am satisfied that, at a minimum, the Complainant’s evidence, as contained in his personal statement, raises significant questions in relation to objectivity and pre-judgement, as they apply to the Service Manager’s role in the process. This evidence also suggests that, despite conducting the entire process right through to the decision-making stage, the Services Manager’s decision may, in the end, have been influenced by a person(s) whose role in the process is not transparent. This would further serve to undermine the fairness of the procedure.

I also note from the evidence that there does not appear to have been any report of the Services Manager’s investigation into the original allegations. Consequently, the Complainant was invited to a Disciplinary Hearing without being adequately provided with details of the charge against him and, as a result, would not have been in position to properly prepare himself for such a meeting.

In addition, the invitation to the Disciplinary Hearing fails to advise the Complainant that the charges against him are serious and of such a nature as might lead to the termination of his employment.

Taking all of the issues into consideration, I find there to be a distinct lack of objectivity and independence in the carrying out of the investigation and disciplinary processes which ultimately led to the Complainant’s dismissal. In this regard, I find that, in the circumstances, the Respondent’s decision to dismiss the Complainant must be considered as unfair.

This view is further undermined by the fact that the Complainant’s appeal of the dismissal decision has not been heard. While I note the rationale presented by the Respondent in relation to the delays with regard to the conducting of the Appeal Hearing, I find that it has compounded the shortcomings of the disciplinary process up to that point.

CA-00017560-002: Minimum Notice:

Given the decision under the Unfair Dismissal claim, the Complainant’s complaint under this Act is no longer appropriate, as no notice would be applicable in circumstances where the termination decision is found to be unfair.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find as follows in relation to the Complainant’s complaints:

CA-00017560-001: Unfair Dismissal:

I find that the Respondent’s decision to dismiss the Complainant is unfair. In that context and taking into consideration the fact that an Appeal Hearing has not been conducted, I direct that the Complainant be reinstated, with effect from the date of dismissal, 25 August 2017, with full salary retrospection to apply.

CA-00017560-002: Minimum Notice:

In light of the decision in relation to the Unfair Dismissal claim, as outlined above, the Complainant’s complaint under the Minimum Notice and Terms of Employment Act, 1973, falls as a result.