ADJ-00025286

Complainant

Respondent

Anonymised Parties

A Plumber

Plumbing and Heating Company

Representatives

Michael Mulligan E.I.S.

Dominika O’Sullivan The HR Suite

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-00032152-001

12/11/2019

The Complainant is a plumber who was employed by the Respondent from the 1st October 2018 to the date of his dismissal on the 25th October 2019. He was paid €1440 gross; net €1184 on a fortnightly basis and he worked a 40-hour week. He claims that his dismissal was unfair because the Respondent acted unreasonably in not utilising proper procedures. He further submits that the sanction of dismissal was disproportionate under the circumstances. The Respondent claims that the dismissal was justified and that it acted reasonably towards the Complainant at all times.

The Respondent company is a small, family owned business providing plumbing services to public and private bodies since 2007, employing a team of eleven. The Complainant was employed on a full-time basis as a Plumber commencing on the 1st October 2018. The employment ended on the grounds of gross misconduct because of breach of trust on the 25th October 2019. The Respondent submits that it had problems with the Complainant’s work in April 2019 which required a redoing of work at a cost of €1,240 and a subsequent loss of reputation for the company. The Managing Director of the company, Mr. W spoke to the Complainant on this issue. Further issues arose with the fitting of stoves in September of 2019, which came to light when the Complainant was on holidays. The Respondent asserts that there were serious shortcomings in the fitting of the stoves to the extent that it would have posed a dangerous hazard for the prospective occupants of houses. Rectification work cost €2,850, with serious consequential reputational damage for the company. The Respondent met with the Complainant on return from his holidays on the 7th October 2019 and warned him that he was going to impose a sanction of either a final written warning, or dismissal, because the shortcomings in his work were unacceptable. The Respondent submits that the Complainant did not query the facts at this meeting. The Respondent met with the Complainant again on the 9th October 2019 and confirmed to the Complainant that he was being dismissed on the basis that the Complainant had breached his contract of employment in terms of capability and competence. The Respondent submits that the Complainant gave no reasonable explanation for his work deficiencies. The date of termination of employment given to the Complainant was the 25th October 2019. The Respondent allowed him to work until that date. The Respondent issued the dismissal letter on 1st November 2019 which included a reference to a right of appeal, but the Complainant chose not to exercise this option. The Respondent submits that it chose dismissal over any other sanction because the Complainant had fundamentally breached his contract of employment in such a way that the Respondent lost all trust and confidence in him. The Respondent submits that the Complainant’s negligence amounted to gross misconduct in that it had created serious health and safety risks to other people and caused significant reputational damage to the Company.

Legal Arguments:

The Respondent submitted the following cases for consideration on various legal points:

·         JVC Europe Ltd v Panisi [20111] IEHC 279 on the reasonable behaviour expected of an employer when faced with gross misconduct

·         Bank of Ireland v James Reilly (2015) where clarity was given on what was required under section 6 of the Unfair Dismissals Act.

·         Looney & Co v Looney, UD 843/1984 where the Tribunal outlined the principles to be applied in gross misconduct, which have been established over time.

·         Pungor v MBCC Foods Ltd (UD584/2015), Arytza Bakeries c Vilnis Cacs, UD/17/106 on a complainant’s requirement to exhaust internal procedures, including appeal.

·         Roszak v C&D Foods (UD1316/2011) where dismissal was fair for serious health and safety breaches.

·         McGrath v Irish Distillers Ltd (UD/417/2006) on the issue of redress when there is no loss.     

The Respondent submits that the decision to dismiss the Complainant was made on the grounds of gross misconduct because of a breach of trust. Accordingly, the Respondent submits, his dismissal was not unfair as it resulted wholly from the conduct of the Complainant. The Respondent contends that the Complainant was afforded the opportunity to appeal the sanction of dismissal, but he failed to exhaust this option which was available to him, via the Company Disciplinary Procedure.

The Complainant submits that he received a text message on the Sunday Evening of the 6th October 2019 whilst on annual leave, summoning him to a meeting with the Respondent on the following morning. The text gave no details of any disciplinary issue that had arisen. At his meeting the Complainant was informed of problems that had been discovered in relation to jobs done more than 6 weeks previously. The Complainant asserts that the managing director, Mr W was in a very animated and agitated state and going on about "Bombs" etc. which put the Complainant into a state of shock & confusion. The Complainant submits that he left not knowing what exactly had just happened. He wasn't sure if he had received a final warning or dismissal. He asserts that the Respondent told him that he would get back to him in a few days. The Complainant submits that on the 9th October 2019 Mr W. visited the site he was working on and informed him that he had  bad news for him. He was being dismissed with two weeks’ notice. The Complainant submits that this interaction occurred on a building site rather than a formal private setting. The Complainant made further enquiries and discovered that the Respondent had failed to follow Disciplinary Procedure Guidelines by not giving him enough notice of the meeting nor allowing him to bring a colleague as a witness. The Complainant submits further that on his last day at work Mr W. visited him again on site but left without giving him a letter of dismissal. The Complainant submits that as he was busy he waited until he got home and emailed Mr W. to let him know he was not happy and wished to invoke the Company Grievance Procedure. The Complainant asserts that he received a belated letter of dismissal on the 1st November 2019.

Legal Argument:

The Complainant submits ADJ-00017738 in support of his case where the Adjudicator set out the principles of procedural fairness in dismissal cases. In conclusion, the Complainant submits that no fair procedures were used in the investigative and disciplinary process in contravention of S.I. 146 of 2000 and that, furthermore, the sanction of dismissal was a disproportionate sanction in this instance.

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

Section 6(1) of the Unfair Dismissals Act 1977, 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 Unfair Dismissals 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 Acts 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.”

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:

(i)his right to know the nature of the complaint/allegation against him

(ii)his right to know the procedure to be followed in the course of the investigation;

(iii)his right to know the potential implications of the complaint/allegation should it be established, i.e. the sanction/sanctions that might be imposed;

(iv)his right to be heard in relation to the complaint/allegation and to make representations in relation thereto;

(v)his right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses;

(vi)his right to call witnesses in support of his stated position.”

The Respondent admitted in the early stage of proceedings, that it did not abide with its own procedures as well as not abiding with the normal disciplinary procedures as outlined in SI 146 of 2000. Copious uncontested evidence was given that there was no proper investigation carried out, that the Complainant was not informed in detail of the allegations made against him, that he was not informed of having the right of representation, that the same person who carried out the purported investigation also carried out the dismissal, and who   in turn was also the person who ostensibly would be the independent arbiter in the final stage of appeal. When the physical environment where the disciplinary hearing took place is factored in (both parties facing each other, in a standing position on a building site) the detailed letter of dismissal from the Respondent of the 1st November 2019 does not bear true witness to what transpired in the matter of procedural fairness. I must find that the circumstances outlined above clearly breach the principles of natural justice and were of such a gravity as to put at risk the fairness of any disciplinary process. I therefore find that the Complainant’s case is well founded and that he was unfairly dismissed. An issue that must also be considered, and is argued by the Complainant, is whether the sanction of dismissal was disproportionate. I note that the Complainant did not dispute the fact that he was negligent and unprofessional in his work – the only issue of dispute was the number of defective stoves that were installed. The Respondent said that three stoves were not fitted properly whilst the Complainant contends that there were only two stoves that were affected. Whether or which, there is no denial, based on the evidence before me, that the Complainant was indeed negligent and displayed an amount of incompetence in carrying his work. The question to be addressed is if a lesser sanction, other than dismissal, could have been given by the Respondent. I note that the Respondent referred in evidence to an earlier happening in April/May 2019 when defective work was carried out on a hot press. The Respondent similarly argued that this incident caused him reputational damage and a cost similar to that incurred by the defective stove’s incidents. However, the Respondent chose not to impose any sanction at that time, not even a verbal warning, but dealt with it by speaking to the Complainant. Furthermore, the Respondent seems to be relying on the May 2019 incident to somewhat justify the decision to dismiss in October 2019. This seems to be an inconsistent approach where both incidents resulted in imputed reputational damage and were of similar cost, but one merits dismissal and the other no recorded sanction at all. For an employer to show that it acted reasonably it must ensure that a stepped disciplinary procedure has been applied consistently. Such procedures must primarily show a propensity towards behaviour modification and are not to be utilised as a blunt instrument for dismissing staff. It is clear in this case that no proper procedures were used nor was there meaningful consideration given to the sanction of a final written warning, which I conclude would have been the proportionate sanction in this case. I am satisfied that having considered all the evidence that the Respondent did not utilise proper procedures in affecting the dismissal and that the sanction of dismissal was disproportionate in this instance.

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.

The Complainant did not produce evidence of mitigation of loss at the hearing but submitted that he commenced work within weeks of having his employment terminated. The Complainant committed to send copies of wage slips and other verifiable documentary evidence after the hearing. This was to be copied to the Respondent. However, apart from a written submission on what was a statement of purported loss of earnings, no copies of any wage slip from the current employer, nor other verifiable documentation was submitted. Included in the submission was unsolicited argument  on what the correct wage should have been, unresolved pension issues and revenue matters that allegedly occurred during the Complainant’s employment with the Respondent. Such matters are not for adjudication and therefore will not be considered in this decision. I am satisfied, on the balance of probabilities, that the Complainant has satisfactorily sought to mitigate his loss and is currently in employment. The Complainant states that the was a shortfall of €140 per week for the remainder of 2019. This will be the reference figure for calculation of loss at the time of dismissal. I also considered the extent to which the Complainant’s conduct contributed to the dismissal, as is required under section 7(2)(b) of the Act. I am satisfied that the Complainants work was not of the quality expected and credibly damaged the Respondent’s trust and confidence in him. However, such a contribution to the dismissal was more than negated by both the Employers disregard of proper procedures and disproportionate sanction. Having taken all matters into account I find that the Complainant was unfairly dismissed, and I award him compensation of €15,000.

I find that the Complainant was unfairly dismissed, and I award him compensation of €15,000

Unfair Dismissal