Complainant

Respondent

Anonymised Parties

A Delivery Driver

A Bakery

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00029051-001

11/06/2019

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

CA-00029051-002

11/06/2019

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

CA-00029051-003

11/06/2019

The complainant commenced employment as a driver with the respondent, a bakery shop, on 1st October 2018. He was paid €631.94 per week. His employment ended on 13th May 2019. The fact of dismissal was in dispute in this case.

The complainant submits that he was unfairly dismissed and when he asked for an explanation for his dismissal, he received an email from the respondent which stated that he had resigned, which he submits is untrue.   He also submits that there were no grievances between his employer and himself during his employment, nor was he ever given any type of disciplinary warning.

The complainant submits that on Thursday 9th May 2019 he filled out an order form for 110 buns (which were to be used for his own purposes) and placed it in the delivery pile as he would normally. The order was to be paid for upon collection on Sunday 12th May 2019.

On Friday 10th May 2019, the employees were not paid their wages. When the complainant enquired as to the reason for the non-payment of the wages, he was told it was a bank problem and it would be sorted out as soon as possible.

On Sunday 12th May 2019, the complainant collected the buns he had ordered and explained to the till staff that as he had not been paid he didn’t have the money for the buns but that they could hold onto the order docket and he would pay for the buns as soon as he got paid; he was told there was no problem with this.

On Monday 13th May 2019, the complainant went to work as normal.   Around 12.30 he was told that the manager was looking for him. He went to the manager who asked him about the order for buns from Sunday. The complainant explained to his manager as to what had happened and that he was going to pay for the buns as soon as he was paid. The complainant submits that his manager told him that his explanation was not good enough and that this amounted to theft. This allegation was made in front of customers and other staff and it greatly embarrassed the complainant.

A heated argument ensued between the complainant and the manager with the complainant walking out of the shop to avoid further confrontation.

Shortly after this, as the complainant was standing outside the shop, he was approached by the bakery shop owner, who told the complainant that the manager had told him that he, the complainant, had stolen buns. The complainant immediately denied this and told the owner that he had been told that it was ok for him to pay for the buns when he got paid. Despite this the manager told the complainant to go home and that he would talk to him later.

The complainant submits that he received a phone call from the owner at 5.45 that evening. During the call the complainant was told “that it wasn’t good news” and that the owner and his business partner had decided not to bring the complainant back and that he was no longer working for the business. The complaint was shocked and tried to put his case to the owner, but he was not listened to in a call that lasted five minutes. No notice of dismissal had been given to the complainant before this conversation.

The complainant submits that he emailed the owner on Friday 24 May 2019, looking for an explanation as to why he had been immediately dismissed without any prior notice and in such a way, as it had significantly affected him.   The complainant was shocked at the reply he received from the owner who said in his email that he, the complainant, had wanted to leave “immediately” and that they had “accepted” his “resignation”. The complainant submits that this was the opposite of the truth; that he loved his job, worked very hard unsociable hours because of his love for the job.   The complainant maintains that he would never have resigned the way it was implied and that he is not a thief.

At the hearing, the complainant gave oral evidence to support his written submission. Regarding his conversation outside the shop with the owner he stated that he would accept the repercussions for what he had done, whether that be a verbal or written warning. As he left that afternoon, he was told by his manager to leave his van in the car park.   He normally took the van home.

The complainant outlined the phone conversation he had with the owner the same evening.

The complainant stated that he had a meeting with the bakery shop owner on 23 May 2019, as he wanted to clear the air. He told the owner that he wanted his job back and the owner said he would think about it. However, on the following Thursday the owner contacted the complainant by phone and told him that “nothing is changing”, that he was not bringing him back.   The owner did offer the complainant freelance work, but this offer was rejected by the complainant who questioned why the owner would offer a person branded a thief work.

On 25 May 2019, the complainant emailed the owner and asked why he had been dismissed, the reply stated it was because he had taken the buns and had verbally assaulted the manager.

In response to the respondent’s submission the complainant stated that although he had sent in his resignation a few weeks before the incidents of 12/13 May 2019, this resignation had not been acted upon.   He also stated that he had not said he offered to resign and that it had always ben his intention to pay for the buns.

In oral evidence at the hearing the owner (respondent) stated that orders for buns from staff were not normally acted upon unless they were paid for- the assumption being that once an order is filled out it has been paid for. When the manager came in on Monday, he realised that 110 buns, with a value of €220 had been given out without payment and no order form being left.

On Monday 13 May 2019, he had come into the shop and found the complainant and his manager arguing. He told them to stop.   A short time later he spoke with the complainant about the matter. He asked the complainant had he paid for the buns to which he said he had not- that he did not have the money to pay for them.   This, the owner pointed out, despite the complainant having turned down the offer of some cash when the wages had not come through.

The respondent stated that if the matter of the 110 buns had not been raised by another member of staff it might never have come to light.

In his discussion with the complainant the respondent stated that the complainant had admitted that what he had done was wrong. The respondent also stated that the complainant, having handed in his resignation the week before, now asked the respondent if he wanted him to leave that moment or did he want him to work until the end of the week. The respondent told the complainant that it was a very serious matter and that he would have to think about it.

The respondent stated that he discussed the matter with his business partner, and they decided that in the circumstances they had no choice other than to let the complainant go with immediate effect.

The respondent stated that he informed the complainant of this decision by phone that afternoon.

The respondent stated that he had to let the complainant go to show other staff that this action could not be tolerated and that the complainant’s actions were not something he could forgive. As a gesture of goodwill, he decided to pay the complainant two weeks’ pay.

In closing the respondent stated that there had been an investigation and that he had been fair to the complainant. The complainant had admitted he had done something very wrong and he, the respondent, could not look the other way. He did consider a final written warning but stated that if anyone was caught stealing from the shop and they caught they would be fired.

The claim of Unfair Dismissal here is under the Industrial Relations Act, 1969 as it cannot come under the Unfair Dismissal Act, 1977 due to the short service of the Complainant.

However, this does not mean that the guiding legal principles of Natural Justice do not apply.

A landmark case is Frizelle v New Ross Credit Union Ltd, [1997] IEHC where Flood J. stated that

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.

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

 Furthermore, legal instrument SI 146 of 2000 – Code of Practice on Grievance and Disciplinary procedures (declaration Order) 2000 Industrial Relations Act, 2000 applies. This S.I. essentially codifies the Rules of Natural Justice.

It should be noted that the respondent entity does not have any disciplinary procedures.

In this case, the rules of Natural Justice were not applied in any manner or means. The so-called investigation fell well short of what is required. The Complainant was dismissed without warning, he was not given an opportunity to defend his position and was not afforded the right of representation. There was no right of appeal.

I find the respondent misused a resignation made sometime in advance of the happenings of 12 - 13 May 2019, which, crucially, had not been acted upon, as a convenient tool to attempt to hide a dismissal.  I believe the complainant when he states that it was never his intention to resign and no resignation was offered.

I can understand a shop owner having a zero-tolerance policy in relation to theft but in this instance, I believe the complainant when he states that he is not a thief and that he was not attempting to steal the buns; he made no attempt to “cover his tracks”. A zero-tolerance policy however, does not negate the requirement to follow the rules of Natural Justice.

In the circumstances, I find the sanction of dismissal was disproportionate.

On a legal basis and put simply, not having twelve months’ service and being on probation, does not mean that all employment rights based in Natural Justice go “out the window” so to speak.

Having reviewed and considered all the evidence both written and oral I came to the view that this was an Unfair Dismissal.

The complainant’s favoured redress is re-instatement. The respondent’s favoured redress is compensation. In the circumstances I favour compensation as the best option. Taking into account the payment of a goodwill gesture payment of two week’s pay, made by the respondent to the complainant when his employment ended, I believe redress of six weeks’ pay is fair.

The complaint is well founded, and I recommend the respondent pay the complainant €3,609.64.

As per CA-00029051-001, above.

The complainant submits that he did not receive all his rights during the period of notice, as per CA-00029051-001, above.

The respondent denies the allegation.

The complaint is well founded. It is dealt with in the CA-00029051-001 Decision, above.

The complainant submits that he did not receive his minimum notice on the termination of his employment.

The respondent stated that he paid the complainant two week’s pay when his employment was terminated.

Under the Act the complainant is entitled to one week’s notice or pay in lieu of same. The payment of a goodwill gesture should not be conflated with a notice payment. Therefore, the complainant is due his notice.

The complaint is well founded. I order the respondent to pay he complainant €631.94 as payment in lieu of his notice.

Natural Justice, investigation, notice payment.