Complainant

Respondent

Anonymised Parties

Water Plant Operator

Water Treatment 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-00030187-001

12/08/2019

The Complainant was employed as a water plant operator. His job involved travelling to various water treatment plants to carry out routine servicing and cleaning for the Respondent. He commenced work on the 18th April 2017 and his employment was terminated on the 10th May 2019. He was paid a gross weekly salary of €604.50, net €502.62. He claims he was unfairly dismissed because the Respondent did not use proper procedures in carrying out the dismissal and that the allegation that he was using gym equipment in a client’s premises during working hours was untrue. The Respondent submits that it utilised correct procedures when engaging with the Complainant and that the sanction of dismissal was proportionate. The fact of dismissal is not at issue.

On the 30th April 2019 gym equipment was discovered at a water treatment plant (X). The equipment was laid out in a circuit fashion as if it had been used for work-out sessions. At an investigative meeting on the 2nd of May 2019 a photo of the equipment was shown to the Complainant who confirmed that it was his equipment, but that it was being stored there and not used for work-outs. It was established during this meeting that the equipment had been located on a previous occasion at another water treatment plant (Y). On that occasion, the Respondent submits, that the Complainant was advised about the safety implications and the Respondent requested that it be removed. The Respondent submits that the Complainant said at the meeting that he had moved the equipment to another plant (Z)., but that the Complainant contended that it was only at Z for a short period.

The Respondent’s position is that it does not accept that the gym equipment was being stored, which in itself was unacceptable, but that the way it was laid out suggested that it was used for physical training and exercise, which raised very serious issues. The Respondent considers that the unauthorised use of the client’s property along with the Complainant’s refusal not to comply with an earlier instruction, constituted gross misconduct. The Respondent further submits that the actions of the Complainant is further compounded by the fact that the Complainant received a verbal warning in relation to his failure to follow instructions regarding the company Time Management system on the 20th December 2018.

Given the gravity of the situation, the breach of trust and the implications for the Company, the Respondent submits that its decision to dismiss the Complainant was a fair one. It further submits that at investigation, disciplinary and appeal stages, it offered and granted the Complainant representation and that all the procedures it used with the Complainant were fair and reasonable.

The Complainant submits that there was a personal vendetta being waged against him and that this eventually ended with his dismissal. He submits that he was promised a substantial pay rise after six months and another rise after 12 months, but neither were awarded. The Complainant submits that he was told he had to do an exam, which never materialised, and that no other operator was required to do such an exam.

The Complainant submits that he had issues regarding an incident that happened at a water plant because of the Complainant using a rope to secure himself, instead of a proper harness which had not been supplied. He described how he experienced some difficulties when he sought to report the incident.

The Complainant asserts that new work schedules were introduced in November 2019 and that initially he asked for some time off because he wanted to care for his wife, who has a serious illness. He submits that his father-in-law was ill at this time also and he subsequently died. This necessitated him taking some time off. The Complainant submits the foregoing reasons were given for non-compliance by him at the time but that he still received a verbal warning for not sticking to these schedules. He disagreed with the sanction of the warning but accepts that he did not appeal the warning. He submits that it seemed like other operators were not being targeted in the same way.

On the 1st May 2019 the Complainant received a text from his supervisor instructing him to attend a meeting on the following day. The text suggested a meeting about the ‘schedule tracker’ along with a Health and Safety issue. The text suggested that the Complainant could bring someone with him, if he so wished, and the text further stated that this was ‘standard’ procedure.

The Complainant submits that when he turned up at the meeting of the 2nd May 2019 he was faced with three members of management. He contends that one member of management turned over a photograph which showed his gym equipment. He admitted that he was storing the equipment at the location while his house was being re-decorated and that he told those at the meeting that, in truth, he forgot that the equipment was there.

On the 10th May 2019 the Complainant attended a disciplinary meeting where he was told that he was being dismissed because the Respondent believed that he was using the gym equipment and as well as storing it. He submits that that he told the meeting that there was no proof of this allegation and that no matter what he said at the meeting he felt that it was predetermined that he was going to be dismissed. He submits that he believes now that the equipment was set out in a circuit pattern by the Respondent before the photograph was taken. He contends that he left it stored up against a wall and that the arrangement in the photograph was contrived in a conspiracy to fire him.

The Complainant further argued that the Respondent had double-standards when it came to the issue of storage of personal goods on client’s premises. The Complainant presented photographs of furniture, belonging to a manager in the Respondent company, which was stored at a client’s premises. He submits that he also presented these photos at the appeal stage with the Respondent.

The Complainant submitted evidence of having applied for a number of positions after the dismissal, for which he was unsuccessful. He stated that he is now on job seekers allowance.

The Law:

Section 6 of the Unfair Dismissal Acts, 1977-2015 (The Act) provides the relevant provisions in determining what constitutes unfair dismissal:

Section 6(1) of the Act, as amended provides 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 all the circumstances, there were substantial grounds justifying the dismissal.

Section6(4)(c) of the Act provides that: -

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

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Act provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”

Fair Procedures:

The recent decision of the Court of Appeal in Iarnród Eireann v McKelvey [2018] IECA 346 gives guidance on the precise employee rights when an employee is faced with allegations of gross misconduct. Mr McKelvey had been accused of fraudulently using a fuel card. Although the case concerned the right to legal representation in a disciplinary case, which was subsequently adjudicated upon in the Supreme Court, the Court of Appeal took the opportunity to  positively reaffirm and identify the precise rights to which Mr McKelvey was entitled as part of fair procedures in a formal disciplinary procedure, amongst other things, as “…his right to know the nature of the complaint/allegation against him.

In deciding whether the Complainant was not afforded all the rights and benefits of fair procedures, as he claims, or whether, as claimed by the Respondent, that it always acted fairly, I must firstly determine whether the Complainant’s right to know the precise allegations made against him, was observed by the Respondent.

Evidence was given by the Complainant that he was called by text to a meeting which referred to a meeting on a health and safety and scheduling issues. The Complainant gave evidence that he felt he was in effect “ambushed” at this meeting when a photo of gym equipment was turned over on the table. The Complainant felt that he did not require representation at the meeting as the text did not allude to any serious allegations per se.

In McKelvey [2018] above the Court of Appeal, in addressing the scope of procedural fairness defined a precise right of an employee faced with serious allegation provided, firstly, as: “(i)his right to know the nature of the complaint/allegation against him. Furthermore, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI146/2000) outline what is procedurally required in disciplinary proceedings. At provision 7 of the General Principles of this statutory instrument it provides that: “These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee be allowed to confront or question witnesses.”   It is evident that the allegations made against the Complainant were very serious. This in turn necessitated, in the interests of natural justice, that the Complainant should have been made aware of the specific allegations prior to any investigatory meeting. I cannot find fault with the Respondent’s disciplinary hearing and the subsequent appeal hearing. However, the denial to the Complainant of the full nature of a charge against him prior to the investigation meeting the investigation is a serious omission, in a procedure that eventually ended in dismissal. In the Respondent’s disciplinary procedures, it is acknowledged that fair procedures oblige the Respondent to ensure that an employee should ‘…know the case against him/her’. I am satisfied that the Respondent did not fully inform the Complainant of the charge against him prior to the investigation meeting. I therefore conclude that the Respondent did not fully employ fair procedures when terminating the contract of the Complainant.

Proportionality;

The question that I must now address is whether the sanction of dismissal was proportionate in this instance. The Complainant received a verbal warning on the 20th December 2018 for failing to abide with company procedures. The warning stated that “Further breaches of Company policies may lead to disciplinary action up to and including dismissal.” I note that the warning was not appealed by the Complainant therefore it must be concluded that the warning was formally accepted. It was incumbent on the Complainant to be vigilant regarding potential breaches of company policy or trust, for the duration of that warning period of six months, or risk more serious sanction. The Complainant admitted to storing gym equipment when confronted by the Respondent at the investigative meeting of 2nd May 2019 but denied using it, as was the charge against him. I note that the Complainant did not any stage of the disciplinary or appeal process allege that the photograph of the equipment arranged in circuit fashion was staged by the Respondent. However, the Complainant claimed otherwise at the hearing. I found that the Complainant’s evidence on this point was inconsistent and therefore not convincing. I am therefore satisfied that it was reasonable for the Respondent to conclude that the Complainant had been using the gym equipment at the Respondent’s client premises to the extent that it constituted gross misconduct.

In mitigation, the Complainant did produce cogent photographic evidence of furniture being stored in a similar premise by a manager. The Respondent should have taken this into consideration before the dismissal. I also note the fact that when the Complainant was found to have been storing equipment at other premises, there was a somewhat lukewarm warning given, as distinct from a severe reprimand. This suggests a somewhat nonchalant approach by the Respondent to the storing of items on clients’ premises and it seems the Complainant relied upon this attitude to some degree. I therefore conclude that the sanction of dismissal was disproportionate where the Respondent could have relied on a lesser sanction like a final written warning and/or unpaid suspension.

Having considered all the evidence and arguments in this case I am satisfied that the Respondent did not properly abide by fair procedures and in addition, that the sanction of dismissal was disproportionate. I therefore find that the Complainant was unfairly dismissed.

Redress:

Mitigation of Loss

Section 7(2) of the Act deals with compensation and mitigation of loss.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal….

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

I am satisfied that the Complainant made reasonable efforts to mitigate his loss however I must consider the extent of the contribution of the Complainant to his own dismissal, as per 7(2)(f) of the Act. I find, that on the balance of probabilities, it was reasonable for the Respondent to find that the Complainant had used and stored his own gym equipment at a client’s premises without permission. I am also minded that a verbal warning still had currency at the time of dismissal and that the Complainant should have been aware of the need to maintain appropriate conduct at work. I conclude that the Complainant significantly contributed to his own dismissal.

Having considered all the circumstances and evidence in this case I find that the Complainant was unfairly dismissed, and I award him compensation of €5,000.

I find that the Complainant was unfairly dismissed, and I award him compensation of €5,000.

Unfair Dismissal, Gross Misconduct.