Complainant

Respondent

Anonymised Parties

A Removal Assistant

A Removals Business

Representatives

Shane Healy, Maurice O Connor, Healy O'Connor Solicitors

Mary O'Brien Williams, Aoife Williams, Tom Smyth & Associates

Act

Complaints Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00017580-001

22/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017580-002

22/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00017580-003

22/02/2018

This case was submitted to WRC on 22 February 2018 and was scheduled for its first hearing on 6 July 2018. On the day of hearing, the complainant was not available to the hearing. The Complainants Solicitor requested an adjournment as his client was serving a custodial sentence unrelated to his employment. The Respondent expressed dissatisfaction and submitted that they had attended the Court hearing, where the Complainant had been given a 90-day sentence. Any adjournment would disadvantage the Respondent, a sole trader.

I considered the request for an adjournment. I had listened very carefully to both parties’ submissions. I explained that I believed that extraordinary circumstances prevailed, and it was unknown how the loss of liberty had impacted on the complainant. I resolved to relist the case and requested submissions and documentation from the Complainant to cover the actual tenure of employment. I also explained that this was the sole adjournment in the case.

Both parties presented comprehensive written submissions and were all present for the relisted date on October22, 2018. The Complainant submitted additional material on loss and mitigation in late January 2019 which was in turn copied for the Respondents attention.

The Respondent operated a Removals Business and disputed the complainants reported tenure of employment 1 April 2015 to 13 February 2018.

CA -00017580-001 Unfair Dismissal

The Respondents Representative submitted that the Complainant was hired by the Respondent as a Removals Assistant on October2, 2017 on a one to two-day week. This coincided with an increase in workload. The Complainant was requested to provide his bank details on 9 October 2017. He was paid €138.75 per week, pay slips were provided.

Prior to this, the complainant worked as a contractor occasionally, as required and was paid a daily rate. The Respondents Representative disputed jurisdiction under the Unfair Dismissals Act, saying that 12 months continuous service had not been served.

The Respondent representative submitted that the Complainants employment was terminated for his involvement in a Burglary when he brought the matter to the Respondents attention. The Respondent was unable to continue to have trust in him, as his work involved proximity to client’s belongings and continued employment would have a detrimental effect on potential future business

Respondent Evidence:

The Respondent had been in business of Furniture removal for 25 years. He believed in the complainant and gave him work in October 2017. He commenced as part of the “pool “as he wasn’t always available”. He had worked on 10 -15 occasions before 2017, when the employment was formalised on securing a second truck. He confirmed that he didn’t get around to providing the complainant with a contract of employment. He filled in the “casual Docket “for the complainant’s social welfare claims concurrent with the period of employment.

The Respondent had concerns regarding aspects of the quality of the complainants work and ran into difficulty with one customer. He only kept the contract as the complainant was no longer permitted to work on that contract.

In January 2018, the complainant’s cousin, who also worked for the Respondent, told the respondent that they had been caught in a Warehouse and subsequently pleaded guilty. The Respondent was shocked, and he told the complainant that “trust had been broken” He was concerned that he would lose work because of this. He dismissed both the complainant and his cousin. He explained the delicacy and sensitivity of the work involved, which had to be underpinned by utmost confidence in a Removals Team. The Complainant made no response.

The decision to dismiss the complainant was not an easy one for him to make, nor was it immediate. The Respondent submitted that he had randomly googled the Complainant and learned that he had several previous convictions and a previous custodial sentence.

The Respondent confirmed that he had not utilised a procedure to affect the dismissal and had not retained notes of the 10 to 15 minutes meeting. He confirmed that he had not secured references when he hired the complainant and described himself as “old school “and shook hands on conclusion of employment.

During Cross examination, the respondent re-affirmed that the complainant had been casual staff before his first period of employment in October 2017. He had worked on School Buildings in 2016 and was on a certain Builders Books for a pro longed period.

The Respondent confirmed that he was happy with the quality of the complainants work and had not sought a CV or requested any collateral on his experience. The Respondent confirmed that he did not have a Policy on Ex-Prisoners or maintain a Personnel file.

He recalled an issue with an antiques Dealer where the complainant was given a verbal warning for a serious offence. He confirmed that he had not taken advice as an Employer prior to the decision taken to dismiss the complainant.

He recalled that he had spoken jointly to both the complainant and his cousin at his Cousins house, saying that he had heard they were in trouble from being on a premise late at night, which was somewhere neither should have been. The matter was too serious to invite the complainant in to explain. He confirmed that he had not held an investigation, or disciplinary hearing, but denied that he had been “judge, Jury and Executioner”. Instead, he argued that if the matter had been of lesser consequence such as the previous issue had been in November 2017, he would have given him a further chance. He handed him his P45 and stated that he couldn’t recommend him for employment.

The Respondent disputed an hourly rate of €12.50 per hour or a minimum of 20 hours. He denied a hybrid payment scheme of €250 and €135 per week. He had not maintained records of the casual employment since 2015.

He confirmed that he had attended Court during the complainant’s conviction. He gave the reason for dismissal as gross misconduct but acknowledged that he had not written this down. He recalled googling the complainant’s details as a means of validating the story to date and established a criminal history. He did not confront the complainant with his findings from Google.

CA -00017580-002

The Respondent accepted that the Complainant had not been provided with a statement of his terms of employment. The Respondent had not been advised professionally and undertook to address provision of statements going forward. The Respondent representative submitted that the omission had not been raised in a grievance format at any stage during the employment.

CA-00017580-003

The Respondent submitted that the Complainant had been let go for Gross Misconduct and was therefore not entitled to any pay in lieu of notice.

CA -00017580-001 Unfair Dismissal

The Complainants Solicitor outlined that the complainant possessed the requisite service on which to ground his claim for Unfair Dismissal. He had worked at the Respondent business from 1 April 2015. His position had been terminated on 13 February 2018 without recourse to any process or procedure. He had not worked since his dismissal and sought the remedy of compensation in the event of his claim being successful

He submitted that the complainant had been paid on a hybrid payment system of cash and credit transfer from 2015, when he commenced on 8 hours per week casual work to the date of his dismissal. He did not accept that the Dismissal was conducted in ignorance of the complainant’s rights. The Complainant had not been screened prior to his employment and he had not been provided with a contract of employment. On 29 January 2019, the Complainant provided material documentation on loss.

Complainants Evidence:

The Complainant submitted that he had started work with the Respondent on 1 April 2015. At first it was quiet. Then he was called to work at the end of the week or at weekends. He submitted that he worked 30/52 weeks in 2015, 40/52 weeks in 2016 with the Respondent, taking a 6-week working break to work on a school in Summer 2016. He acknowledged that 2017 was a lot busier, where he sometimes worked 7 days per week.

He submitted that 2011-2014 had been a difficult period in his life, where he had been in trouble a lot. He had endeavoured to put that period behind him. He had benefitted from Intensive supports to enable this recovery. He had been out of trouble from 2014 and liked his work with the Respondent.

The Complainant outlined the circumstances which led to his eventual arrest early in 2018. He recounted that during February 2018, he had entered a derelict and roofless business park, where he and his cousin had acquired a lawnmower with the intention of fixing it. They were arrested and released without charge and then three months later he was charged with theft of a lawnmower and received a custodial sentence from 28 June 2018 to 1 August 2018.

He had not intended on mentioning the lawnmower incident to his Boss but on 13 February 2018, he visited his cousins house to complete his casual work card (x and o) as he wasn’t working that week. The Respondent was there and presented him with his P45 and told him that “I have to let ye go”

The Complainant stated that he hadn’t expected this but wasn’t shocked. He did not challenge the decision. He confirmed that he was not subjected to a disciplinary process. He had sought work but had found it difficult to obtain new work. He confirmed that he earned approximately €250 per week on a hybrid payment system. He secured €140 from   DSP when not working.

During cross examination, the complainant confirmed that he was full time in 2017 and had relied on casual status before this. He was on standby for calls.

The Complainant recounted a reversal of truck by a co-worker   into a shutter door which resulted in his receiving a warning which he classified as “reasonable and fair “. He had used expletives and regretted it.

He confirmed that he did not know what to say when confronted with the details of the lawnmower incident in February. He confirmed that his cousin had not raised a claim.

CA -00017580-002

The Complainant submitted that he had never received a statement of his terms of employment.

CA -00017580-003

The Complainant submitted that he ha not been provided with pay in lieu of notice.

CA -00017580-001 Claim for Unfair Dismissal

I have considered the facts of this case as submitted by both parties. There is a Preliminary Matter to be resolved in the first instance. That is whether the Respondent can rely on the exclusion clause contained in Section 2(1) (a) of the Act? Whether the complainant had less than one year’s continuous service at the date of his Dismissal.

The Complainant has submitted that the date of his dismissal was 13 February 2018. The Respondent puts the date earlier at 26 January 2018. The P45 submitted captures the date of cessation as 26 January 2018. I was drawn to an email dated 12 February 2018, submitted by the respondent, which requested preparation of 2x P45s for the Complainant and his Cousin. I am mindful that there was no dispute that the confirmation of dismissal was accompanied by distribution of P45 to the complainant. I have resolved this conflict in favour of the complainants submitted dismissal date of 13 February 2018. It appears that the reference to 26 January 2018 was the last pay date as both were on “casual docket “during the evening where dismissal was notified. I also note that the “lawnmower incident “was tabled as occurring in early February and both sides accept that dismissal post-dated this.

I have listened carefully to the evidence of both parties in relation to the duration of the alleged employment. I appreciate that there were large periods of ad hoc alleged employment between 2015 to February 2018. However, I cannot accept that a contractor relationship was in being during this period. I have established that a casual employment relationship was in existence between the parties from April 1, 2015 to October 2017 which formalised thereafter to February 13, 2018. I attribute this to the level of direction and control exercised by the Respondent towards the complainant which was inclusive of the hybrid payment system which ran concurrently. In addition, the DSP casual docket system is payable in the case of employment. The Respondent fully complied with his responsibilities on the “X /O “component of same which bound the parties together for DSP purposes from 2017 onwards.

Section 2(1) (4) of the Unfair Dismissals Act outlines the overarching role of the Minimum Notice and Terms of Employment Act, 1973 in judging continuous service for the purposes of the Act. The Complainant did not resign, nor was he terminated during the period of April 1, 2015 and February 13,2018 and while I accept there were short breaks, I have found a continuity of employment enough to ground a claim under the Unfair Dismissals Act. My view on this is strengthened by the omnipresent hybrid pay system interspersed with DSP payments as a casual worker.

It is regrettable that no records of employment were available outside the late edition pay slips. A contract of employment would have unequivocally clarified the opaqueness.

The Dismissal in this case is presented as a Conduct based dismissal. The High Court in JVC Europe ltd V Panini {2011] IEHC, 279 has summarised the legal framework governing such dismissals.

The issue for the Tribunal deciding the matter will be whether the circumstances proven to find the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal

It is of relevance that the Respondent is a Sole Trader, not fully conversant in the breadth of employment policies and procedures. However, SI 146/2000 on fairness in Disciplinary Procedures has universal application and is widely relied on in the world of work. I cannot accept that the Respondent chose to waiver the application of even the most basis Inquiry into the extracurricular activity of the complainant. I accept that the complainant’s cousin disclosed the incident of the lawn mower which happened outside work hours and off site.

In Des Ryan’s Redmond on Dismissal Law, he points to the differentiation between criminal offences attempted or committed outside and during employment. He relies on an extensive extract from Crowe V A Post [2016] ELR 93

……As a general rule the employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some legitimate interest in the conduct of the employee. An interest would normally exist where there I some nexus between the employees conduct and the employer’s business. The employer must demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to business, employee relations or affect the reputation of the company. The test is, has the out of work conduct of the employee impacted adversely, or can impact adversely on the employer’s business? If it has then the employer has the right to institute disciplinary proceedings. Whether this gives the employer the right to impose sanctions up to and including dismissal will depend on the circumstances ….

It is important to reflect on the sequence of events in this case. The Lawnmower incident occurred in early February 2018 and was followed by an arrest and release without charge before a 3-month interval prior to the eventual charge of theft of a lawnmower. Therefore, the complainant had not proceeded through the criminal courts by the time of his dismissal on 13 February 2018

In applying Crowe to the facts of this case, I accept that there was as a degree of nexus between the conduct of the complainant and the respondent business of furniture removal. In all I heard in this case, I fully accept that the Respondent was in genuine fear for the integrity of his business if the complainants outside work behaviour was publicised.

However, all actions must be embedded in fair procedures and sadly no procedures were displayed here. This is particularly regrettable given the fulsome opportunities afforded to the complainant by the Respondent from 2015. Both parties clearly benefited from a strong working relationship and I found it very sad that the employment relationship combusted as it did.

I also noted a marked inconsistency surrounding the management of the “Roller Shutter “issue and that of the termination of employment. I noted that the complainant had accepted a warning as “reasonable and fair “This, for me, at least demonstrated the respondent’s awareness of fair procedures and their real time application.

I have established that the Respondent unwittingly ventured into the Criminal Court Decision making process and terminated the complainant’s employment at a time of great vulnerability for both parties and prior to the Circuit Court pronouncement in the case. I heard the complainant’s representative when he remarked that the complainant was hired without collateral or reference checks. I found no evidence that he tried to hide his troubled past. I found the extreme hurry to terminate employment prior to any serious consideration of lesser sanctions to be precarious and disproportionate and thus fatal to the Respondents case.

I completely understand the Respondent temptation to google search. However, this cannot be accepted as a substitute for pre-employment clearance. The complainant was not provided with a chance to respond to the google search listings and crucially the Respondent did not inform him that he had taken this into account prior to the decision taken to dismiss.

In summary, a job must be considered someone’s livelihood and to lose a job can be hugely traumatic. I found that the Respondent gave insufficient regard for the impact of this loss on the complainant. (Bank of Ireland and James Reilly) He was not permitted to answer the charge of Gross Misconduct. I found this omission profound when weighed in the balance of the complainants past troubles.

I did not have the benefit of hearing just what prompted the Respondent to attend the Court Case involving the complainant in June 2018.

I appreciate that the Respondent felt he had to put the integrity of the business first, however the duty of care to practice natural justice and fair procedures towards an employee needed to weigh in the balance. This was absent on the 13 February 2018 and the Dismissal was must therefore, be considered both procedurally and substantively unfair.

The claim for Unfair Dismissal is well founded. the Complainant is entitled to the protections contained in Section 8(11) of the Act.

(11) Where the dismissal of an employee is an unfair dismissal and a term or condition of the contract of employment concerned contravened any provision of or made under the Income Tax Acts or the Social Welfare Acts, 1981 to 1993, the employee shall, notwithstanding the contravention, be entitled to redress under this Act, in respect of the dismissal.

CA -00017580-002

I have considered both party’s submissions on this claim. I have established a continuous breach in Section 3 of the Act. I wish to record that provision of such a statement, obligatory under Section 3 may have guided the parties towards an earlier clarity in this case. I have found the claim to be well founded.

CA -00017580-003

I have considered both party’s submissions on this claim. I have found that the complainant was unfairly dismissed and is therefore entitled to his Minimum Notice payment. I find the complaint to be well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA -00017580-001

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 have found that the Complainant was unfairly dismissed and entitled to benefit under Section 8(11) of the Act on redress. I have identified compensation as the only practical remedy in this case. I have considered the complainants submission on mitigation .

I have estimated the complainants average weekly wage to be €150.00. I order the Respondent to pay compensation of 52 weeks loss to the complainant in respect of the unfair dismissal. This amounts to €7,800.

CA -00017580-002

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the claim to be well founded. I have established a continuous breach of Section 3 of the Act. I order the Respondent to pay the complainant €450 in compensation in respect of that breach.

CA -00017580-003

Section 6 of the Payment of Wages Act, 1991 requires that I decide in relation to the complaint in accordance with redress provisions under that Act.

I have found the claim to be well founded. The Complainant is entitled to pay in lieu of his minimum notice period. I order the Respondent to pay €300.00 as two weeks minimum notice entitlement.

Unfair Dismissal, Minimum Notice and Statement of Terms of Employment