Complainant

Respondent

Anonymised Parties

A Manufacturing Manager

A Start Up Company

Representatives

Terence O'Sullivan, TJOS Solicitors

John Boylan, BDM Boylan Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00030108-001

07/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997(withdrawn at Hearing)

CA-00030108-002

07/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030108-003

07/08/2019

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

CA-00030108-005

07/08/2019

On 7 August 2019, the Complainant, a Manufacturing Manager at a Start Up Business submitted 5 complaints to the WRC. This was later amended by the withdrawal of the above-named claims to three live complaints.

The Respondent denied all three claims and consented to the withdrawal of CA-00030108-002 and CA-00030108-004.

The Respondent is a Start Up Construction Business in its infancy.

Both parties filed written submissions when requested. Both parties were legally represented. The Complainant by Terence O Sullivan and the Respondent by John Boylan.

A Preliminary Issue arose on the 22 November 2019, the first day of hearing. The respondent Solicitor submitted that the case was impeded by the failure of the complainant to return 38 Computer Programmes to the respondent. He argued that this would be prejudicial to the case if it remained unaddressed. The matter had become an issue for the Gardai.

The Solicitor for the Complainant took issue with this presentation and explained that the programmes were retained by the complainant against an outstanding debt to him of €200,000 by the respondent. He outlined the background to the case and his client’s interface from self-employment to work at the respondent start up business and gave reasons for retention of the programme.

I listened to both parties and emphasised that neither party had addressed the hearing on foot of a prepared written submission. I explained that I was unwilling to be caught up on a inter party property issue. The case before me would be heard as planned.

After a brief break, the parties resumed, and the complainant undertook to return the programmes within a defined period.

Following a brief case management, 5 witnesses were announced for the respondent, inclusive of a Computer Expert. I adjourned the hearing on foot of high levels of emotion emanating from the complainant side and I invited both parties to submit a written response to the claim within an agreed period.

Both parties subsequently submitted written submissions and the case proceeded to full hearing over February 6 and 7, 2020. Where the Respondent presented five witnesses and the complainant presented two witnesses.

The respondent operates a Start Up Business which has identified a new construction mechanism. This has been patented and manufactured incrementally through the respondent business in an exciting new development since 2015. The respondent representative gave a broad outline on the incremental steps of progression for the company and the central importance of the company in the lives of the Directors present at hearing. The background to the case involved a certain interdependence by the respondent on the complainant’s wood machinery based at his workshop, prior to purchasing their own machine in 2018.

CA-00030108-001   Claim for Unfair Dismissal

The Respondent has rejected the claim for unfair dismissal and submitted that the complainant was dismissed for gross misconduct on 21 June 2019.

The Respondent had employed the complainant from his previous self-employed advisory role on 1 April 2018. His unsigned contract reflected a 36.5 hour working week. The respondent also exhibited a copy of the company handbook sent to the complainant on 21 September 2018. This was confirmed as read and understood by the complainant in October 2018.

The respondent exhibited some earlier correspondence surrounding the complainant’s negotiations prior to his start date, some of which was reflected in the latter contract of employment.

The self-employment at the wood turning business, ran in parallel with the period of direct employment and this was governed by a non-disclosure agreement dated January 2016.

It was the respondent case that the complainant did not make an easy transition from self-employment to direct employment. Issues of territory, finance, production and participation in company appraisal process became a concern. The complainant forwarded an email of stated concerns to the respondent on 3 March ,2019 which coincided with a period of personal loss for one of the Directors.

On March 30, 2019, the complainant placed the respondent on notice that as a creditor he was ceasing manufacture of respondent products pending a resolution to his company debt, rental issues and insurance.

The respondent proposed a face to face discussion with the complainant and this occurred on 12 April 2019 and an action plan was recorded complete with review periods.

The complainant raised issues surrounding both his direct employment and on behalf of his business. He maintained that he was owed money. This was disputed by the respondent.

The situation became grave for the respondent when the issues tabled by the company on 16 May and sent to the complainant were rejected and he proceeded to deal directly with another Director of the Company.

The respondent submitted that the complainant was invited to attend a Disciplinary meeting to investigate possible gross misconduct on May 28. By then, the company had grave concerns regarding the complainant and tabled the allegations of possible gross misconduct in this letter. These included:

1 sabotage of company property

2 unauthorised removal/theft of highly valuable programmes

3 refusal to answer management calls

4 Threat to liquidate the business

5 damage to customer relationship

6 suggestion to by pass revenue rules in respect of the complainant’s company

The complainant was offered representation but did not attend the meeting. He submitted a Medical certificate by email. The respondent disputed illness as the Cert reflected “under my care “. The Complainant declared his inability to attend re-arranged Disciplinary meetings.

The respondent received two communiques from the complainant but did not engage in the Disciplinary procedure. He recorded a rebuttal of the allegations which the respondent tabled.

On 13 June 2019, the respondent received a further Medical Certificate from the complainant to 21 June 2019.

On 14 June, the respondent received a confirmation that the complainant was “continuing to exercise a hold pending the discharge of all enclosed “Invoices were enclosed from the complainant’s company.

The respondent considered the complainants written responses and his non attendance at two scheduled disciplinary hearings .They wrote to the complainant on 21 June and notified that the complainant had not attended the meetings , had been present in his own workshop during sick leave and had met with one of the Board Members ,but had not attended the disciplinary meetings .The Compliant was dismissed with immediate effect .The Complainants representative came on record on 24 October 2019 and a Personal Injury claim was lodged on 13 November 2019 .

The complainant did not honour his commitment to return the computer programmes. The Complainant had withheld invoices for a 3-year period from the business and produced only on foot of the Disciplinary process. The respondent exhibited the accounts of the complainant’s business, where these invoices had not featured in the time line referred to.

Evidence of Mr A, Computer Expert

Mr A gave evidence that the Patented programmes files incorporated a unique concept. In November 2019, through his analysis of data, he confirmed that the files were missing from their original location. He ran a software application to check their actual existence and confirmed that the files had existed but were deleted. He concluded that they had been permanently deleted. These files were not recoverable.

During cross examination, he confirmed that nobody else had access to the wood cutting programme, which was the mainstay of the business. They were not in recycle bin.

He was not called on to remedy the situation, his role was to investigate.

Evidence of Ms A, Financial Controller

Ms A outlined that she had considerable experience at senior level as a Chartered Accountant in Financial Services. Her involvement with the start up was on a voluntary basis initially and she came into the business in 2015. She set out the entrepreneurial journey of the company and accolades earned. She said “she saw the passion for the company “.

She first met the complainant in 2016, he was recommended from a contact in the trade. He had worked on proto types for the business.

He joined the company as an employee at his own request in April 2018 and was employed as Head of Manufacturing on an annual salary of €60,000, which exceeded that of the CEO of the company. His nephew was to join also. The contract was emailed to him but did not incorporate a profit-sharing clause. The complainant did not sign the contract and said he wasn’t sure what he wanted. He did not raise issues on the contract.

Ms A outlined the system of performance appraisal operated by the company, staff could self-assess and return a completed template before sitting in discussion with the CEO. The complainant received his self-appraisal form but ignored it.

The Complainant habitually did not seek prior approval for overtime worked and he rarely placed it on the timesheet.

The complainant operated a machine at his own premises and the respondent purchased such a machine for the business. The company relied heavily on the complainant expertise.

On 2 March 2019, the complainant sent a “hard hitting “email top the company. This coincided with a period of personal loss for Ms A.

Ms A was not aware that the business owed the complainant money, but the complainant told her that he needed money for his business. The respondent had not signed a lease on rent of his business premises. The respondent did use the machines at his premises as the respondent premises was not suitable to make “certain components”, but no rental agreement existed.

Ms A recalled that the complainant presented as stressed on several occasions when he cried at work. He sought an advance in pay in January 2019. Both she and the CEO sat him down, where he discussed having medical issues and was offered days off.

He asked if the respondent could top up his business account and record it as rent and Ms A did make some ad-hoc payments. These, she understood were the only outstanding debts.

The complainant blamed his financial pressures on the respondent and was exasperated.

The complainant was working on a manual for the Machine at the business but was not forthcoming on sharing this knowledge with other workers and initially refused to train other technical workers on the machine but relented after several weeks. He was proud of the machine but territorial on it.

Ms A referred to the complainant’s letter of March 30, 2019, where the complainant referred to monies owed to his company. She knew that there were no invoices outstanding.

The complainant was working on a live job and he held the product in ransom. The respondent was unaware of another manufacturer and this caused a fall out with a customer. The raw materials had been paid in January 2019 and no work had been seen. €3.500 of stock had been retained in lockdown in the complainant’s warehouse. The actions of the complainant were a threat to the strategic investors.

Ms A recalled the meeting of April 12, which lasted 3 hours. she observed that the complainant sat through the meeting and exhibited a smirking expression as he detailed a wish list .An agreed action plan was agreed and communicated to the complainant on 16 May 2019 .Invoices from the complainants business for 2016, 2017 , 2018 were totalled and a deficit of €9,178 was identified and paid on foot of invoices which were to follow , but did not .This payment was to re-open the opportunity for the respondent to retrieve stock .Invoices were later submitted for a more elevated amount during the Disciplinary process .

Salary was reviewed, and the respondent disputed €4,242.61 sought by the complainant. Rent had been confused with salary on one occasion in October 2018 and an overpayment of €757.39 followed on 31 December 2018.

Rent was reviewed but no agreement came into being.

The complainant agreed to release all the respondent property from his workshop in return for autonomy in his business for a 6-week period to bring cashflow in. The respondent agreed to pay his salary through this process.

The complainant’s letter of March 30 had been addressed and was to be presented to the respondent board. A follow up meeting was planned for 6 weeks later to discuss progress

Mr B, another employee told Ms A that the complainant had been very upset in his presence on 15 May and refused to release stock or complete work needed at the business.

Ms A sent a record of the agreed action plan on 16 May and Ms A was shocked as the email in response demonstrated that he was at a different meeting to her on 12 April 2019. He had not returned stock as agreed. He made incorrect statements regarding rent. The situation became critical when the complainant by passed the respondent and appealed directly to a Board Member.

The respondent invited the complainant to a disciplinary meeting on 28 May 2019 by registered post and email. The situation was dire for the company. The complainant did not make himself available for discussion, the respondent decided to terminate his employment.

During cross examination, Ms A confirmed that the Complainant was on sick leave 30 May -13 June and the respondent had not considered a referral to Occupational Health.

She gave reasons for the dismissal, which centred on the complainant being one of the main 4 leads in the business and programmes were redundant, he was not participant in necessary training and product had been lost at his hand. Jobs had been turned away as a result. The respondent had physical evidence of time sheets which demonstrated that the last day of the programmes being present on the machine coincided with the complainant being the only activity on that day. She explained that the respondent was very concerned when the complainant went to another Director of the Business. This Director advised that the business should change the locks at the respondent business for enhanced security.

She denied that the 38 programmes were a “red herring”

Ms A told the herring that she had an honest belief that dismissal was necessary. She clarified that she considered every employee and believed that the complainants’ actions had placed the respondent in “severe jeopardy “to amount to a threatened shut down. It was clear that the complainant had his own money worries. she had weighed up what Mr B, a close friend of the complainants had told her. She clarified that she had not concluded an investigation but had reviewed a dossier of documents. The complainant had not demonstrated signs of illness.

Ms A explained that the complainants’ actions had caused harm to the business in production delays, cash flow and staff training, and the company stood over the dismissal. She expressed her apprehension regarding these threats to viability.

Three weeks after the dismissal, she viewed the inter party correspondence between the complainant and the Director and this was not part of the Disciplinary Procedural outcome.

Ms A understood that an invoice may have been in existence for work on the complainant’s computer, but this invoice was not available on inquiry.

Evidence of Mr B Cost Manager

Mr B outlined that he worked as Cost Manager , who got on well with the complainant .In May 2019 , the complainant had undertaken to look at the “ bed” of the machine on the respondent site .He called the complainant as the work had not been completed and he had concerns that an associated job was at risk .He was seeking access to some plates and he asked the complainant for some clarity. He said that the complainant confirmed that the respondent wasn’t going to receive these unless monies were forthcoming to him.

Mr B had begun to engage with an alternative supplier as a contingency and told the complainant about this. The complainant said he was frustrated at not being paid and the “only way forward was to liquidate “Mr B said that he couldn’t talk to him. He reported this within the business on May 20 as it impacted on his role at the business.

Mr B was not aware of what programme the complainant used, just that he used his lap top to design for the respondent.

During cross examination, Mr B confirmed that the machine makes a wood product through application of a programme. The Complainant operated the machine and when required added the programme. There were two different programmes on the machine and the complainants lap top.

He re-affirmed that he had always got on well with the complainant and the discussion with him on May 15 was not confrontational. He was physically upset that the respondent was not making money and he was holding onto product.

Evidence of Ms B Technical Manager

Ms B outlined that she worked in Compliance and IT requirements at the respondent business. She gave a background on the evolution of IT at the business. The complainant used a lap top. The machine was not connected to email. Several requests were made to back up relevant programmes. The machine cost €225,000.

Ms B linked the complainant to a modification in the computer programmes between January and February 2019.This did not prompt an investigation.

In closing, the respondent representative submitted that 3 out of 6 allegations on May 28 letter amounted to gross misconduct on the complainant’s behalf. The complainant had broken trust with the respondent and refused to engage with his employer through the agreed procedures. He simply did not deal with the issues or respond. The respondent provided him with an adequate opportunity to make his defence to the tabled allegations.

He argued that the complainant did not even pick up the phone to get to the bottom of the matter and he was not suffering from a medical condition of such standing to justify his attendance at the meeting. By automatically sending in a medical certificate, he denied himself the right of a proper hearing.

The respondent acted on a genuine belief that the complainant had caused grave harm to the company and was “really really concerned “by his attack on the company. The direct approach to the Director from sick leave confused and scared the respondent further. The dismissal was justified in the circumstances of the complainants conduct.

CA-00030108-003       Minimum Notice

The complainant was dismissed for gross misconduct and is not entitled to notice pay.

CA-00030108-005       Payment of Wages.

The respondent detailed that the claim as presented from October 2018 was out of time and opposed the application for extension of time on reasonable cause.

It was the respondent case that €5,000 payment had been made in error on October 2018 to the complainant’s company instead of through his employment, but this discharged the contractual term on pay.

The Complainant is a long-established Wood Turner who operated his own business for 38 years. He had served as an Advisor to the Respondent Start Up Business prior to accepting full time employment on 1 April 2018. . His gross salary was €60,000 per annum.

CA-00030108-001   Claim for Unfair Dismissal

The complainant’s representative submitted that he had been unfairly dismissed due to gross misconduct on 21 June 2019. He sought all three remedies under the Act. The complainant was now in his 60th year and had not engaged in direct employment since his dismissal. He remained self-employed in his Wood Turning Business which has an ongoing status of threatened viability.

The Complainants Representative outlined that he had been approached by the respondent CEO with a new idea on timber frame construction in 2015. This idea grew into a successful business which enjoyed important patronage and investment. The Complainant had bi located between his business and the respondent business since 2018 but had been denied a share holding.

The respondent issued a letter to the complainant on 28 May 2019 which announced a forthcoming Disciplinary Meeting for gross misconduct on 31 May 2019. The letter outlined 6 issues for discussion.

1 Alleged sabotage of a Programme

2 Alleged removal of programmes

3 Lack of availability to answer management calls

4 threatened liquidation

5 alleged retention of equipment on complainants work shop site

6 Invoicing system 2015-2019

The complainant responded on 6 and 14 June by letter and countered the charges. At that stage the complainant had commenced sick leave.

On 21 June 2019, the respondent terminated the complainant’s employment without any fair procedures and the complainant, who had played a pivotal role in the development of the company was denied the principle of natural justice.

The complainant’s representative submitted that the charges did not warrant a summary dismissal.

Evidence of the Complainant

The complainant outlined that he had 38 years of experience in wood turning and joinery. The machine at the heart of the case is a wood machine controlled by computer. He gave an extensive account of its operation which he described as revolutionary, once the necessary components are stacked.

The Complainant outlined how he had met the respondent CEO in 2015, who approached him with a new idea for manufacturing which intrigued and fascinated the complainant. It developed into a successful prototype. The product was patented, and a new machine purchased for the business in July 2018.

He was aware that the respondent was in start up phase and had very little funds. He dealt with jobs on “one off “standards and gelled with the CEO.

Plans for houses were emailed to him which consisted of 24-25 jobs. He perfected the process on his own machine and lap top. There were some variances in his lap top and the software in respondent machine. There were some malfunctions.

The CEO invited him to become an employee as he was impressed by his work. He was very sure that he came on board to build the company with him. He agreed to the €60,000 salary but needed to keep his own workshop live and supported. He submitted his requirements on salary, rent, workshop in February 2018, but did not receive a reply. The respondent was in a market niche and the objective was to “get the job out and payment would be there “Cash flow was a problem, but he worked hard, and the company became successful and attracted investors who identified milestones.

By March 2, 2019, he had become frustrated and focussed again on his February 2018 letter which sought “requirements for consideration for contract “

Payment of Invoices, 10 pc share in company, 36-month service agreement with his company for €60,000 per annum, starting salary of €60,000 with stepped increases and loyalty bonus. Maximum of 45 hrs per week, redundancy of 3 years value, pension plan and health insurance.

He had experienced his own financial problems and needed cash flow of his own. He felt the pressure was “killing him inside “He felt undervalued and under appreciated for his influential role in the start-up.

The complainant submitted that he had signed the contract monthly after he officially started but the items on his wish list had not found there way into the contract as they were overtaken by purchase of the new machine in Christmas , 2018 .He had expended considerable energy on the respondent work at his own business and had not received payment for this .He confirmed that he had not read the respondent staff handbook. Wages were paid when cash flow permitted. In January 2019, he identified a shortfall of €24,000 in his bank account.

By 30 March ,2019, he wrote a letter to the respondent seeking payment for work one as he had no funds in his company. He applied a lockdown on respondent stock based at his workshop. He had overextended his work at the respondent factory to the detriment of his workshop.

He was invited in to address his letter with CEO and Ms A on April 12. He understood his issues were being addressed by the respondent.

He had no idea that his job was at risk. He had addressed Mr B on May 15 and told him that the Directors were doing their best to work around the issues. He was horrified, shocked and disbelieving to receive the letter of May 28 as he had no indication of his demise. He had identified a balance owed to him of less than €200,000.

He went to his Dr and was advised that he couldn’t keep going on working without being paid.

He denied any sabotage of respondent programmes, he denied being out of contact for the respondent or threatening to liquidate the respondent. He had been working on options provided by his Accountant.

He was on sick leave and unable to attend an oral hearing. He was physically unable to attend. He was not provided with an appeal of the decision to dismiss him.

The complainant clarified the contact he made with one of the Executive Directors. He phoned him for advice an discuss his issues with the company. He clarified that the computer dongle and programmes were in the office where he left them.

He gave some evidence of loss and mitigation and live subsistence on a low rate of social welfare.

During cross examination

The complainant confirmed that he had received €5,000 from the respondent to address the lock down situation at his company as his own company could not release any funds. He had ongoing money worries. He had high hopes that the respondent was working on solutions to his earlier correspondence.

The complainant confirmed that he had trading difficulties at his own business in 2015 and had accumulated large losses. He also took over a mortgage in 2010. He denied that the bank was putting him under pressure.

The complainant confirmed that he had verbally communicated that the contract offered had fallen short of his expectations. He confirmed that he had not entered a written agreement with the CEO on a 3-year workshop deal, but he had agreed verbally. He recalled that he was standing by the machine in the new factory when that conversation took place.

By March 3, 2019, Ms A had become to the go to person for Finance. He had an outstanding debt. He acknowledges that he had difficulties with some employees and had felt insulted by one, who he barred from his workshop.

The complainant submitted that he had given the 2017/18 workshop invoices to the CEO and refused to accept the respondent contention that he had not submitted invoices. He was shocked when he found out that the contingency company used by the respondent had been paid when he had not. The respondent was his only customer. He was very apprehensive when his outstanding debts were not addressed and moved to protect his interests. He denied threatening the Director, he just wanted advice.

He agreed that he had issued invoices for €49,000 from his business but refused to accept the respondent offer of payment on foot of those invoices as he knew there were more invoices. He was on paid leave from Mid-April to the end May to attend to his own business.

He denied refusing to undertake work on the respondent machine and told Mr B that he had checked it already. He refused to complete some work for the respondent.

The complainant confirmed that he dated the invoices and sent them on 6 June 2019 and did not reflect the active Disciplinary procedure. His medical certificate was his first one submitted, but he could not function to attend a hearing.

The complainant replied that by then he felt totally unsupported and cut off from everyone. He had concerned on some inconsistencies in work practices and didn’t answer when he was asked why he had not backed up the computer. He felt untrusted by fellow employees.

Evidence of Mr C, Chartered Accountant

Mr C outlined that he had known the complainant for 15 years, and who had been pleased to have found a new customer in the respondent. He understood that the respondent owed his client €178,327 which had come about through the respondent reliance on the complainant’s workshop prior to purchasing their own machine. The complainant had submitted invoices by proforma invoice for the period June 2017 to June 2018, before he became an employee of the respondent.

During cross examination, Mr C confirmed that the respondent had paid €5,000 meant to be a wage payment to the wrong entity, that of the complainant’s company. His experience told him that wages are seldom represented by round figures alone.

In closing, the complainants representative re-affirmed the complete lack of fair procedures or natural justice in the dismissal, which occurred during the complainant’s sick leave and during his 60th year. He was thrown on the heap by a company he had assisted in growth and development.

The representative disputed that any of the allegations were sufficiently serious to amount to gross misconduct.

The complainant was passionate about his work and was troubled by an unpaid debt to his company before he reached a watershed by March 3 and locked down his workshop against the respondent to seek to resolve matters.

The respondent did not complete an investigation into the alleged wrong doings but admitted to a “dossier “of documents. The complainant had played a role in the turn of events, but his dismissal was void of procedures. Connolly v Mc Connell [1983] IR 172, Supreme Court.

The complainant did furnish a response to the allegations, but he was not heard by the respondent which amounts to an unfair dismissal. Giblin V Irish Life and Permanent PLC [2010] IEHC 36 cited in support of arguments made in accordance with the reasonableness test in Section 6(7) of the Act.

CA-00030108-003    Minimum Notice

The complainant sought payment for the notice period as he argued that he was entitled to be paid in respect of this.

CA-00030108-005     Payment of Wages.

The complainant submitted that a short fall in his wages of €4,242.61 arose from October 2018. He sought payment of this sum supported by evidence from his Accountant.

He did not accept the respondent rebuttal that monies had been paid by mistake to the complainant’s business on 4 October 2018 and this constituted a payment of wages.

The complainant sought an extension of time in accordance with section 41(8) of the Act.

CA-00030108-001   Claim for Unfair Dismissal

I have listened carefully to both parties’ oral presentations followed by cross examination. I have also reviewed both written submissions, company trading records and analysis of earnings. I have also considered the case law advanced in the case.

It is important for me to set the scene for the findings I now propose to make. This is a case where the complainant had a dual identity of an early self-employment which was followed by a 15-month period of direct employment in a start-up business. This was accepted by the parties.

My role here is to explore, enquire and decide on a claim for statutory unfair dismissal. Locus stands to progress such a claim is permitted solely to workers who are directly employed.

Section 1 of the Act outlines the clear definition of employee and employer and is based on a contract of service. That is the lens through which I heard this case. While I recognise that a pre-existing self-employed working relationship existed in parallel through the 15month period of direct employment, these working relationships are vastly different in terms of direction and control. The contract of service is grounded in these maxims, while a self-employed person in a contract for service is an autonomous, self-starting mode.

I have endeavoured to navigate through the period covered by the contract of service, having regard for the historical legacies of self-employment and personal injuries claim, but focussed on my sole role under the Act, to decide whether the complainant was unfairly dismissed on June 21, 2019? The boundaries between the period of self-employment and direct employment were frequently opaque and those boundaries go to the very root of the case.

I must first decide whether substantial grounds existed to justify the dismissal.

Section 6 of the Unfair Dismissals Act sets down a definition of an unfair dismissal.

Unfair dismissal.

6

6.— (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.

The respondent has advanced defence contained in Section 6(4) (b) on conduct as the reason for the dismissal.

(4) 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 one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

In this case, the burden of proof rests with the respondent to prove substantial grounds for dismissal. In addition, I may have regard to the following provisions of section 6(7) of the Act.

(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 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.

I think it helpful to call on the 1984 EAT case of Looney and Co Ltd v Looney U 843/1984, as relevant today at WRC on the parameters of my role in this case.

“ It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employers position would have acted as it did in its investigation or concluded as it did or decided as it did , as to do so would be to substitute our mind and decisions for that of the employer .

Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employers’ actions and decisions are to be judged “.

The complainant became an employee in April 2018. While provided with a contract of employment, he did not sign it and I could not establish any follow-on platform where a discussion on contractual terms entered the employment relationship until March 2019, some 11 months later.

The contract of employment reflected a salary of €60,000 per annum and was governed by a handbook. The complainant told the hearing that he had not taken advice prior to becoming an employee. From a careful consideration of the complainant’s evidence, I observed that the complainant did not see himself as an employee but rather as another Director of the company. He was aggrieved that his input into the start up had been dumbed down and his power there had waned once the new machine had been commissioned.

This seemed to focus him towards the instability in the self-employed part of his interface with the company. I believe him when he told the hearing that he had invested himself personally and professionally in the business and that he felt betrayed by the respondent, however this emanated from a time before his direct employment commenced and other avenues of resolution are open to an identified problem in a setting of self-employment. I found no evidence of trialled resolution in that regard. Instead, I found that the complainant appears to seek to turn his employment status into a bargaining tool to assist his main business.

The stark anomaly in this case surrounds the lack of a clear foundation to either the self-employed relationship, which was not covered by service level agreement or the direct employment contract which the complainant appears to have rejected by March 2019. I appreciate that the respondent was involved in the ingenuity, trials and tribulations of a new company which was chasing recognition for its product. However, I must conclude that hybrid system of unemployment was highly controversial and dysfunctional.

I was drawn to the script of March 30 letter the complainant sent to his employers. I found that this significantly strayed outside an employee: employer discourse. The complainant was highly critical of his employer and ought to have been directed to raise his grievances under the clearly articulated company procedure. This did not happen, and the parties met for a marathon meeting on April 12, 2019 to resolve what had become from my point of view an impasse through an unofficial Industrial Action.

I accept Ms as version of events over the complainants in terms of the outcome of that meeting and I thought it reasonable for the respondent to seek a return of its products held at the complainant’s warehouse. I note that the complainant was on paid leave shortly after this which was a clear action point of the meeting.

It is a hallmark of the case that the complainant may have cherry picked aspects of discussions which met with his stated purpose but seemed to blot out the requirement for the quid pro quo aspects of discussions. I am critical that the respondent delayed in sending the complainant the outcome of this meeting.

It is clear to me that the complainant was working on legal advice meant for his business interests. He had not taken advice regarding his direct employment. A contract of employment is deeply embedded in mutuality of obligation and grounded on a mutual trust and confidence.

I have analysed the respondent evidence in relation to the invitation to address the stated concerns of the business initially on May 31 and laterally on 16 June 2019. I am satisfied that the complainant was notified the respect in which he was failing to do the job adequately and the implications for him.

In Hennessy V Read and Write Shop UD/152/1978, the EAT addressed the test for reasonableness on ensuring that the employee was made aware of the allegations against him, was given an adequate opportunity to deny or explain. Whether the employer believed the employee had conducted himself in a certain way and whether reasonable grounds existed for that belief. Whether the sanction was proportionate?

The Labour Court more recently set out an additional direction in Ki saran Concrete V Vitalie Vet UD 11/2016 on respondent compliance with the Disciplinary Procedure in addition to ensuring that all allegations were declared from the outset.

I am very aware that a situational setting can prompt certain behaviours and I understand that the complainant was seeking to save his business in 2019. I also find that there was a certain informality in his early relationship with the respondent CEO, (2015-2018) which was remedied in the contractual terms presented by Ms A in April 2018 and copper fastened by the application of the staff handbook later that year. The handbook outlined that health insurance and pension would follow two years of direct employment. Sadly, the complainant confirmed that he had not read this, yet he signed as read.

I have reflected on all that I heard and read in this case and I am satisfied that the respondent was terrified of the complainants approaches to the company from February 2019 onwards. They understood that his actions to place a hold on stock owned by the company was detrimental. They endeavoured to negotiate through the impasse, but this had not worked.

The Complainant was notified of all allegations and his first course of action post submission of medical cert was to submit vaguely worded proforma historical invoices which were external to his employment relationship. His second was to deny the allegations and seek their withdrawal. I am satisfied that he was given an opportunity to defend himself and permitted representation. He did not avail of it.

A dismissal from any position is a grave and nuclear option, must never be decided on a whim and must be accompanied by a procedural fairness as articulated by the complainant’s representative.

In the instant case, the respondent was growing a Start Up Business and feared for its viability. The complainant had resurrected a basis for negotiation of his employment contract from 2018 and placed it in “spanner “fashion into 2019 discussions. I accept that the respondent had concerns about the complainant’s welfare in early 2019. I accept that the complainant was worried about his business, however by placing a hold on respondent owned equipment at his business, he caused the respondent to worry more. I accept that the respondent feared that the complainant was going to put them out of business. I accept that they considered his response to the allegations but were disappointed when he did not avail of the opportunity to state his case. I note the weighting the respondent placed on Mr Bs proximity to the complainant and his observed changes in his demeanour. I have doubts whether a misunderstanding existed around a threatened liquidation, however, I must accept that the complainant did not avail of the opportunity to clear this up at the pro-offered full hearing.

The Disciplinary procedure details acts of gross misconduct, if proven will result in gross misconduct. It allows for a suspension, pending investigation, if necessary.

I would have preferred to see an Investigation in this case and I note that the Disciplinary meeting had scope for this.

I would also have liked to have seen an opportunity for appeal of the decision to dismiss. However, the complainant was clearly in receipt of legal advice at the time of his dismissal and the claim for unfair dismissal was referred to the WRC in early August 2019, without recourse to an appeal.

However, Ms A’s evidence reflected a genuine belief that the complainant was engaged in corporate harm to the business and would not discuss this with this with his employer. I can understand that they were aggrieved when he departed from the agreed action plan of April 12 by seeking the intervention of a key investor of the business. For me, they had reasonable grounds for that belief.

I conclude that the respondent had reasonable grounds for that view and acted to dismiss as an emergency intervention which they judged necessary and proportionate to save their business from further perceived harm.

While, it was far from an ideal employment relationship or dismissal, I must find that the respondent acted in good faith to protect the company, its investors and its employees.

In this, the respondent has identified that they acted within the band of reasonableness in the face of an absent employee during a disciplinary procedure, who made himself available during sick leave to address a higher power at his employment but not the people identified as the “go to “people in either the grievance or disciplinary procedures.

I have some understanding of the challenges faced by the complainant in 2019, however, he was obliged to follow company procedures in seeking to resolve any impasse with his employer.

I have identified his influential role at the business as “the 5th Beatle” to which the complainant agreed. I understand entirely his deep wish to move forward with the company on its journey. However, I must conclude that the respondent can rely on section 6(4) (b) in their defence of the case. The complainants conduct was of such immediate concern that dismissal was a proportionate action.

The respondent has proved that there were substantial grounds governing the dismissal in this case and the actions taken were within the band of reasonableness. The hybrid relationship with the business compromised an earlier disputes resolution forum. I have expressed my reservations on the lack of opportunity for the complainant to appeal the decision to dismiss.

I find that the complainant was not unfairly dismissed.

CA-00030108-003     Minimum Notice

 I have considered this claim and have deferred to Section 8 of the Act.

Right to terminate contract of employment without notice.

8.— Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

I find that the complainant is not entitled to succeed in this claim and it is not well founded.

CA-00030108-005     Payment of Wages.

The complainant has sought payment of wages that goes back in time to October 2018. The claim was presented to the WRC on 7 August 2019.

This places the claim outside the statutory time limit permitted in section 41(6) of the WorkplaceRelations Act, 2015.

The complainant requested an extension in time on reasonable grounds which was in turn opposed by the respondent.

I noted that the complainant did raise payment of wages at the April 12 meeting and the respondent identified a mistake in the methodology of pay through the complainant’s business. The complainant did not raise a grievance and he did have access to legal advice at that time.

I have considered the seminal case in this regard Cementation Skanska DWT 0338, where a complainant must demonstrate reasons which both explain the delay and afford an excuse for the delay. A causal link must exist.

I have considered the complainants submissions and find that the reasons given were personal and not in keeping with precedent in this field.

In all the circumstances, I find that the complainant has failed to establish reasonable cause and I lack the jurisdiction to take the matter further.

CA-00030108-001   Claim for Unfair Dismissal

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 find that the complainant was not unfairly dismissed.

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-00030108-003     Minimum Notice

Section 12 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 8 of that Act.

I find that the complainant is not entitled to succeed in this claim and it is not well founded.

CA-00030108-005     Payment of Wages.

I have considered the complainants submissions and find that the reasons given were personal and not in keeping with precedent in this field.

In all the circumstances, I find that the complainant has failed to establish reasonable cause and I lack the jurisdiction to take the matter further.

The claim is not well founded.

Unfair Dismissal, Minimum Notice, Payment of Wages