ADJ-00017658

Complainant

Respondent

Anonymised Parties

An Employee

A Limited Company

Representatives

Sinead O'Riordan Sheehan and 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-00022808-001

23/10/2018

On 22nd of March, 2016 the complainant suffered an accident whilst cycling. The complainant was hospitalised and as a result of his injuries was out of work for a period of 8 weeks. He was not paid during his sick leave. Prior to his accident he had no problems with the respondent. Following his accident it was necessary for him to avail of annual sick days to accommodate hospital appointments. His contract only allowed him 3 paid sick days per year.

The complainant had an issue with the roster following his return from sick leave. According to his contract his work shift was Monday to Friday 7:30 a.m. to 4 p.m. however this never was adhered to. The complainant raised a grievance in relation to the roster. The respondent dealt with the grievance however he disagreed with their findings.

On 18th April, 2018 the complaint received a phone call from his manager asking him to attend an urgent meeting at their business centre. The complainant was not informed what the meeting was about. When he entered the meeting room there were three persons present. Two of the director's and one other at management level. The complainant felt ambushed at the meeting. He was told of a complaint the respondent had received from a customer. The respondent attempted to give him a copy of the customer complaint but he refused to accept it. He was given a verbal warning. The director then offered to negotiate a redundancy package with him. The complainant asked if the respondent was happy for him to continue working there. The reply was "I would love if you left now". The complainant then left the meeting. A few days later the complainant received an email attaching the formal notice of the verbal warning. The letter did not mention the alleged customer complaint but instead stated that the complainant had not fulfilled his contractual hours, contractual duties and had not attended to call out requests as per his contract of employment.

On 25th May,2018 the complainant received a text message from one of the directors requesting him to report directly to the company's offices. Once again when he arrived at the meeting there were numerous management and director level employees present. The complainant was given no prior notice as to the meeting’s agenda. Once present, he was told that the respondent had received a letter of complaint in writing from a customer. A second letter of warning was handed to the complainant. At the end of the meeting one of the directors said “now we are finished, you are gone that's it leave the keys and go home you're gone Ms .L will arrange the paperwork” A few days later there was another conversation about redundancy. The complainant was told he would be entitled to €16,000 redundancy but the respondent would only offer him €8,000. He rejected the offer. He was then informed that he was being very foolish rejecting this offer and that if he contested it, he would never win against the respondent.

Shortly after the complainant was dismissed from his employment he began carrying out research in relation to the set-up of his own company. That company was incorporated in July 2018 however, to date it is not trading. The complainant is in receipt of jobseeker’s allowance. He has not attempted to gain other paid employment because he has put all his energy into setting up his new company.

On January, 2018 the Service Manager received a phone call complaining about the general maintenance and upkeep of the equipment within the complainant’s area. Each Service Engineer, is given a checklist to go through when maintaining each of the machines. The person who complained stated that various jobs on the checklist were not be carried out by the complainant.

Following the phone call the complainant was requested to attend at the respondent’s offices for a meeting to discuss the complaint. At the meeting the respondent told the complainant about the phone call they had received and the specifics about the complaint and told him that he would have to up his game.

On the 18th of April,2018 the respondent received a second complaint specifically in relation to the entry validation gates not being kept up to standard at Grand Canal dock. Again, the complainant was requested to attend a meeting at the respondent premises. At the meeting the details of the complaint were outlined to the complainant, however he did not accept the allegations. The respondent again explained to the complainant how important that particular contract was for the survival of the respondent company. The complainant was issued with a verbal warning in a letter dated 24th April 2018. The letter stated that a verbal warning was been administered as a result of:

1. None for filament of contractual working hours / time keeping.

2. None for filming of contractual job duties.

On the 08th May,2018 the respondent received a call from their client in relation to the cleaning of the touch screens on the vending machines within the complainant’s area. The complainant was contacted by the respondent and asked to carry out the job of cleaning touch screens at the particular station. Under the terms of the agreement that respondent has with the client once a call is received from the client their service engineers must respond within one hour.

On the 9th of May,2018 the same client member spoke to the Service Manager stating that the request from the previous day had not been fulfilled. On the 15th of May the same client member made a verbal complaint to the service manager regarding the same incident.

On the 15th of May 2018 the respondent received a call-out from the client in relation to maintenance of fare collection equipment at Grand Canal dock. The complainant was contacted on the 16th of May. On the 17th of May the client staff member made a verbal complaint to the managing director of the respondent that the call-out has still not been completed and that it was totally unacceptable.

The complainant was issued with a first written warning which said warning was detailed in a letter dated 23rd May 2018.

On the 23rd of May the respondent’s Service Manager received an email from the client with a photograph attached. The email detailed a complaint regarding a ticket vending machine at Heuston station. The photograph demonstrated that the internal mechanism of the machine was not been contained properly. The complainant is solely responsible for the maintenance of that fare collection equipment at that station. The complainant was issued with a second written warning which said warning was sent to him by letter dated 28th of May 2018. That same letter notified the complainant that his employment was been terminated with immediate effect.

The respondent denies that redundancy was ever discussed with the complainant. Quite the opposite is the case. The Respondent has been employing more services engineers since the complainant’s departure.

Unfair Dismissal

Section 6 of the Unfair Dismissals Act 1977 as amended (‘the Act’) provides inter alia as follows:

‘(1) 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 all the circumstances, there were substantial grounds justifying the dismissal.’

Subsection (4) (c)

“provides that a dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the conduct of the employee. In addition, subsection (7) provides that where appropriate, regard may be had to the reasonableness of the conduct of the Respondent with regard to the dismissal.”

The complainant had a good record with the respondent up until 2018. He was issued with his first warning on the 24th April, 2018 following a meeting with the complainant at the respondent’s offices. I note that the complainant was given no notice of the meeting agenda prior to it. His second warning came in the form of a 1st written warning on the 23rd May, 2018 arising out of incidents on the 9th and 17th May, 2018. Again, the complainant was given no prior notice of the complaints being made against him prior to the meeting. On the 28th May the complainant was given his second written notice and notice of dismissal. He was not informed of his right to appeal the decision. It would seem from the respondent’s evidence that the investigation and disciplinary hearings were rolled into one. Furthermore, the complainant was not advised that he could bring someone with him to the meetings.

The respondent, based on a number of complaints over a short period of time made the decision to dismiss the complainant. McHugh v AIB Group, UD/1077/2014, the Employment Appeals Tribunal placed significant emphasis on the necessity for a sanction to be proportionate to the conduct / misconduct concerned. In doing so it relied on the previous decision of that Tribunal in Snia Ireland Limited v Connelly, UD.194.1983 in which it was decided that:

‘Misconduct must be measured in the context of the employee’s act, not just its consequences or potential consequences to the employer. The reasons for the act have to be evaluated and put into the context of his employment and responsibility.”

Due to the nature of the complaints, the number of them and the importance of that particular contract I accept that the respondent felt they had no option but to dismiss the complainant. However, due to the fact that the complainant was given no notice of the complaints prior to the meetings, was not informed that he could bring a colleague or representative with him, was given no option to appeal any of the warnings or the decision to dismiss, I find that he was denied his right to fair procedures and nature justice. It is on that basis that I find that he was unfairly dismissed.

The complainant has an obligation to mitigate his loss. In Sheehan v Continental Administration Co Ltd (UD858/1999) the EATstated,

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”. The complainant has done nothing to satisfy his obligation to mitigate his loss.

He admits to spending all of his time setting up a company. Whilst the company has been incorporated since July, 2018 it is not yet trading. He has made no effort to secure paid employment. Based on the information given by the complainant I am satisfied that he has failed to mitigate his loss.

Whilst I find that technically the complainant was dismissed from his employment, I can only conclude, based on the evidence adduced by both parties that he was the author of his own misfortunate and that he has completely failed in his obligation to mitigate his loss. In all of the circumstances, I am making no award.

The complaint succeeds. No award is being made for the reasons set out above.

Dismissal, Proportionality, Mitigation of Loss.