Complainant

Respondent

Anonymised Parties

Warehouse supervisor

Builders suppliers

Representatives

Simon Donagh BL Cahir O'Higgins & Company Solicitors

Peninsula Group Limited.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00031032-001

19/09/2019

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

CA-00031032-002

19/09/2019

This a complaint of unfair dismissal submitted under both the Industrial Relations Act, 1969 and the Unfair dismissals Act 1977-2015.

The complainant was employed as a warehouse supervisor with the respondent from April 2004 until his dismissal on 20/3/2019 for misconduct.

The complainant earned €2924, gross, per month.

He submitted his complaint to the WRC on 19 September 2019.

Correct Respondent

The respondent agreed to the correction of the name. This is reflected in the decision.

CA-00031032-001 Complaint under section 13 of the Industrial Relations Act, 1969

The complainant’s barrister stated he would take instruction on the respondent’s decision to decline to participate in the hearing the complaint of unfair dismissal under the Industrial Relations Act, 1969. It was agreed that the complaint under the Unfair Dismissals Act 1977-2015, based on the exact same set of facts should be heard first.

CA-00031032-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977-2015.

The complainant was employed as a warehouse supervisor with the respondent from April 2004 until his dismissal on 20/3/2019.

Incident prompting the dismissal

The complainant was in charge on the 1 March when a consignment of brick particles or brick slivers were dispatched from the respondent’s premises and were not secured in the truck. As a consequence, the brick slivers were damaged upon arrival at the respondent’s client’s premises. There was a subsequent financial loss to the company.

Complainant’s evidence.

The complainant stated that he supervised the warehouse and was responsible for goods in and goods out. Ninety per cent of drivers do their job properly.

On the day in question, the 1 March, the driver was delayed as he had spent 7 hours on two earlier deliveries. The complainant told him that the load of brick slivers had to be delivered. The complainant contacted Head Office about the driver’s reluctance to take on the job. Eventually the driver agreed to transport the load of brick slips to the respondent’s client.

The complainant knew nothing about the damage to the goods until the following Wednesday.

He was brought into an investigative meeting on 6 March and contrary to what the respondent alleges, he did not offload responsibility on to two other employees for loading the truck. He was unsure about which consignment had been damaged as many go out on the same day and did not remember his involvement. When asked, he said that he thought A and B probably packed the load, but he could not be sure.

A second investigative meeting took place on 7 March with the warehouse manager. He was shown the CCTV footage and saw that he had lifted the load onto the truck.

Following the meeting with the warehouse manager the complainant rang the truck company who dispatched the goods to the respondent’s client to get more information regarding the procedures a driver should follow when collecting a load. The truck company owner informed him that he was not at fault, that they had accepted liability and had offered to pay for half of the damages incurred. The truck company owner then stated that there was not much damage caused to the product. The respondent never informed him of this.

None of his training procedures suggested that it was his responsibility to secure the load in the truck. Neither did his job description make him responsible for securing and wrapping the load onto the truck.

The complainant was summoned to a disciplinary hearing on 14 March. The respondent Director accused the complainant of not following procedures. He was unaware of a written procedure regarding the dispatch of goods. The complainant asked the Director conducting the hearing on the 14 March for a copy. The Director told the complainant that he would read up on the procedures and he would go through them with the complainant. This did not happen. He received no copy of the procedures. As far as the complainant was concerned, he followed the procedure of securing the goods to the pallet. It is then the driver’s responsibility to secure the pallet to the truck as it says in the drivers CPC manual. At the disciplinary hearing he showed a photo of a transport truck that returned with a load on another occasion that was not secured, and the load had shifted in transit. This happened from time to time and was not unique to him. All these instances are recorded on the ISO file.

The complainant received a letter of termination dated the 20th March 2019. On being handed the letter the Director said to the complainant, " I'm gutted to have to do this, but I don't have the numbers in the boardroom and unfortunately there is nothing I can do about it”. ln the letter, the respondent states that the complainant had told the director that the driver didn't strap the load and when he was asked why he didn’t insist that the driver strap the pallet, he replied he never does strap loads. In his statement he explained that the driver was refusing to even take the delivery not that he was refusing to strap the load.

It also states that the subsequent financial loss was due to the order being issued free of charge in order to repair any damage done to the respondent’s name. He had been led to believe that the financial loss was due to actual damage to the product. He was not given an option to rectify same. On being cross examined re loading of trucks, the complainant stated that on receiving the truck he must check that the goods are strapped and then he signs it off. He stated that it was part of his role to check the strapping on the pallets. The lads had already prepped the load for forklift operations. It was the driver’s job to secure the pallets to the truck but that it didn’t happen on this occasion.

The appeal took place on the 29 March. At the appeal hearing he asked the CEO could he postpone the meeting as he had still not received a copy of the procedures. The CEO told him that the procedures were not written procedures but on -the- job procedures based on experience. The complainant agreed to continue with the appeal. ln this meeting, the CEO stated that on reading the written record of the meeting of the 1st March 2O19 a reasonable person would interpret that he had transferred responsibility to A and B who had packed the truck. His first statement was on 6th March 2019 and this statement was taken by the warehouse manager who would know the difference between packing and loading. In the second meeting with the warehouse manager, he stated that he was asked who prepped the order and then asked who loaded the order. The complainant believes feel that although a reasonable person might interpret this as the same thing, the fact that the warehouse manager asked him more than once about who prepped and who loaded indicated that he knew the difference. He knew exactly what he was talking about. The complainant also stated at the disciplinary hearing that it was the driver’s responsibility to strap the load.

Following the hearing the complainant received an unsigned typed one-page version of the minutes from a meeting that lasted about 20 minutes. In the hearing, a notetaker wrote the minutes by hand.

When asked why he offered to compensate the company he stated that he did it to save his job as he loved his job. He would still like his job back but believes that the respondent does not want him to return.

In cross examination by the respondent the complainant stated that he accepted that his job description specified supervising and that it was within his job description to determine that the truck was safe to leave. He stated that must compile list of goods, schedule time for dispatch, ensure that load is picked up by driver, check number of pallets, check that that they are stacked correctly, and check the integrity of the palettes.

The complainant’s representative submitted that the burden is on the employer to prove that the dismissal was not unfair. The respondent failed to show which procedure the complainant was in breach of or if written procedures existed about his responsibilities. The only document presented is the job description which states that it is the complainant’s duty to supervise loading. His job description does not state that he is required to secure the load.

The complainant’s barrister submits that at its height the respondent’s case is that the complainant is one of two people responsible for the damage to the goods, the driver of the truck being the other person

Defects in the disciplinary process

He was not advised of right to representation in advance of the disciplinary hearing.

The director who dispatched the warehouse manager to investigate the matter expressed himself to be appalled at how goods were delivered to the customer and asked the warehouse manager to ensure that this never would happen again. This same person who made the complaint against the complainant instigated the disciplinary process against him.

Then complainant’s representative pointed to the CEO’s statement in the response of the 2 April to the complainant’s appeal where he stated, “I believe you were aware of the right to representation.”

Given the CEO’s stated lack of trust in the complainant, the complainant’s representative questioned the appropriateness of him conducting the appeal. Someone other than CEO could have conducted the appeal.

The complainant challenges the proportionality of the sanction.

Mitigation.

The complainant hasn’t applied for jobs. He is being monitored for stress.

Family circumstances led to him feeling low. He has been on illness benefit since 1 November 2019.

CA-00031032-001. Complaint under section 13 of the Industrial Relations Act, 1969

The Respondent declines to participate in the complaint of unfair dismissal submitted under the Industrial Relations Act, 1969.

CA-00031032-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent denies the complainant ’s claims and submits that the complainant was lawfully dismissed, subsequent to an incident which caused several thousand euros of property damage, in circumstances whereby the claimant had prior disciplinary issues and was on a final written warning.

Witness 1

The warehouse manager gave evidence.

The HR and Accounts manager, a Director, asked the witness to initiate an investigation into why goods had not been secured in the truck on the 1 March.

The complainant failed to properly secure the load of bricks in the truck. They fell off, were damaged and unusable for the client. The complainant disclaimed responsibility as he did not load the bricks. The complainant tried to transfer responsibility for the insecure load and consequential damage and loss to two unqualified workers. The warehouse manager submitted that the warehouse supervisor should have overseen the packing as well as the loading of the bricks onto the truck. As part of the investigation they showed CCTV footage to the complainant. This showed the complainant sitting in the fork lift loading the goods on to the truck contrary to what he had alleged. The witness stated that all in the warehouse were involved.

There were 2 investigations into the incident and the matter was then transferred into the disciplinary process.

In cross examination the witness advised that there had been numerous discussions with relevant staff on the need to pack and load goods securely.

The witness confirmed that there were no written procedures.

Witness 3 The Director of Sales and Marketing

He advised that he had received a complaint from one of their most valued clients threatening to withdraw an account. They had an order book with that company for €1 m for 2019. The respondent’s client had been highly critical of the state of the goods on arrival but more importantly was highly critical of how goods had been packed and the threat posed to the public had the bricks fallen off the truck. As a result of that failure to secure the load properly, the contents of the palette were sprawled all over the truck by the time it reached its destination, and enormous damage had been caused to the contents of the load. The respondent had to replace the order and provide the entire order free of charge, at a cost of approximately €3000 to the company, plus reputational damage

The respondent director instigated the disciplinary process in accordance with their policy.

At the disciplinary hearing on 14 March, the complainant when asked why the goods had not been strapped down in the truck before they left the yard, replied that he was too busy, was in a hurry and wanted to get the load our in time. The complainant at that stage agreed that he had loaded the truck and in relation to his previous denial of same, stated that that he could not remember on the occasion of the first asking.

The witness submitted that there was a load of brick slips (slivers), an inch thick, 30 – 40 a box, each box weighing 20 kg, one box stacked on top of another, wrapped in plastic and placed in a pallet. If insecurely wrapped and stacked, they could topple off the truck on turning a corner and can cause injury apart from their destruction and the consequent loss to the company. Securely packing goods was discussed at length in the company.

The complainant is a qualified fork lift and truck driver. The respondent must comply with their own ISOs and health and safety policies.

He said they are a small company with a management team of 4.

The witness considered the complainant’s lack of oversight in allowing the load to leave the yard in a dangerous state to be gross misconduct.

On being cross examined by the complainant’s representative, the respondent witness confirmed that he did not have written procedures but that a yard supervisor ought to know about securing a load on a pallet and wrapping the load correctly.

The witness stated that he did not know if the complainant had received training but that he knew the rules about loading a truck. He could not rely on his yard supervisor as he had initially disclaimed responsibility for the incident. The decision to dismiss was based on the fact that the person on whom he relied allowed the goods to leave in such a perilous state.

The witness stated that the complainant was a long-term employee, well aware of the need to ensure the staff and public’s safety irrespective of whether anything is written down or not. The pallet if it had toppled off the truck could have killed a child.

The witness advised that the driver of the truck has also been disciplined because the driver should not have left the yard without the goods being strapped down.

The witness stated that he was dismissed for failing to follow oral procedures.

Witness 4. The respondent CEO

The respondent CEO conducted the complainant’s appeal against the decision to dismiss him at a hearing on the 27 March. The CEO considered the ground for the complainant’s appeal

The CEO asked the complainant if he required representation and the complainant stated that he did not. The witness stated he was openminded in the appeal process

When the witness asked the complainant to explain what had happened and why he should change the decision to dismiss, the complainant blamed somebody else. The CEO lost trust in the complainant there and then. In relation to the complainant’s stated lack of knowledge of the exact procedures, he had been working with the respondent for 15 years, had trained new drivers on how to load goods and had refused to load previously when he believed goods had not been securely wrapped or stacked.

It was not the first time that the complainant had been less than truthful with the witness. The complainant believed that the driver should bear responsibility for loading and strapping the brick slivers, but the driver is not an employee. It was the claimant who had signed the palette out of the yard and it would therefore have been his responsibility to strap down the load correctly. The respondent considered the complainant’s negligence in not wrapping and securing the load to be gross misconduct contrary to all industry norms and ISOI.

The CEO stated that he did not pursue to complainant’s offer to compensate the company for the cost of the damage which on a conservative estimate amounted to €3000 because that would have amounted to two weeks wages. It was out of the complainant’s range. Furthermore, he had previously denied that he was responsible and landed responsibility with the driver.

The witness stated it was difficult to get a forklift driver supervisor.

In relation to the proportionality of the sanctin, the witness stated that it was the second appeal during which the complainant had told him untruths and he had lost faith in him.

On cross examination the witness accepted that the driver bore some responsibility for the insecurely placed load.

The complainant had received training in how to strap down goods. The witness did not have details of this.

None of the 9 points submitted by the complainant persuaded him to overturn the appeal.

In cross examination the witness stated that while the driver is the person responsible for strapping the load, the supervisor ‘s job is to ensure that it is strapped. It was a contract driver in this case. The truck is not the respondent’s own. All drivers are contract drivers.

In relation to the absence of a reference to right of representation in the respondent’s invitation to the disciplinary hearing of 14 March, the letter refers to the disciplinary policy a copy of which was handed to him and that expressly provides for representation at a disciplinary hearing.

The respondent’s representative submits that he was lawfully dismissed following an investigation and disciplinary process (and having had the benefit of an appeal), in circumstances whereby he had previously received a final written warning, and where he fell foul of the custom and practice of the industry, committed a health and safety breach, did a significant amount of property damage and cost the company a large amount of money and the need to repair the relationship with one of their biggest customers.

The respondent denies that there were any procedural defects. It is further submitted that even a flawed investigation process, which is denied, is not necessarily fatal to a dismissal. In this respect, the respondent refers to the High Court judgment in Shortt -v- Royal Liver Assurance Ltd. [2008] IEHC 332, where Laffoy J. clearly outlined that a central consideration to fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result”.

Should the adjudicator find that the complainant was unfairly dismissed which is denied the adjudicator must acknowledge that the complainant contributed towards his dismissal. The claimant was on a live, final, written warning in respect of another matter.

The Respondent refers to the scope of the decision-making bodies dealing with complaint of unfair dismissal and refers to following decisions:

Looney & Co. Ltd. v Looney UD843/1984, where the EAT said that it is their responsibility 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 employer’s actions and decision are to be judged.”

Barry v Precision Software Ltd. (UD 624/2005) [2006] 10 JIEC 1801, where the Tribunal said:

“The Tribunal's function is to decide whether the employer's reaction and sanction came within the range of responses, which a reasonable employer might make” and

Law on Procedural defects.

Additionally, even in circumstances where some procedural issues surrounding a dismissal may be present, that in and of itself does not necessarily negate the fairness of the outcome. Although the Respondent contends that they acted correctly and in accordance with all procedural requirements they refer to

Elia Erian Aziz v The Midland Health Board [1995] E.L.R. 48, where the Circuit Court held that:

“(3) While a disciplinary body exercising quasi-judicial functions is bound to adopt fair procedures, a bona fide defect in the procedures adopted is not necessarily fatal to the legality of the ultimate decision made. Where a defect in the procedure adopted or in the conduct of the proceedings is alleged, the applicant in order to succeed must establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done.”

The respondent also referred to Pacelli -v- Irish Distillers (UD 57I / 2001) where the Tribunal stated that:

“…in determining this appeal, we must look at the substance of the complaint and beyond mere defects of form. Lavery J. in O'Mahony v. Arklow UDC[1965] I.R. 710 at p. 735, held that the Court should not, and in the respectful opinion of this Tribunal, the Tribunal should not: ‘…parse and construe rules of procedure in a narrow and unreal way, looking for some flaw in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.”

Mitigation

Should the Adjudication Officer find that the claimant was unfairly dismissed, which is denied, the issue of mitigation arises. It is incumbent upon a claimant to seek to mitigate his/her losses as per Section 7(2)(c) of the Act. The respondent refers in this regard to Coad v Eurobase (UD1138/2013) where the Tribunal noted;

“In calculating the level of compensation, the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.”

The Labour Court in Synergy Security Solutions -v- Dusa (UDD1911), awarded a successful claimant nil unfair dismissal compensation on the basis that he has failed tomitigate his loss.

Concerning the complainant’s contribution to his own dismissal, the respondent also refers to the decisions of:

Mlynarski -v- Pianos Plus (UD 1294/2008) where the Claimant was awarded no compensation due to his own contribution to the dismissal.

In A Beauty Therapist v Beauty Clinic ADJ-00011306 the Adjudicator noted that the dismissal while unfair, the complainant “contributed 100% to the dismissal and no award of compensation is made.”

In light of the above, the Respondent respectfully invites the Adjudication Officer to find that the claims are not well founded and should fail.

CA-00031032-001 Complaint under section 13 of the Industrial Relations Act, 1969.

The respondent failed to lodge an objection to the hearing of this complaint within the 21 days specified by section 36 (1) Of the Industrial Relations Act,1990 and was informed of the scheduling of this complaint to which no objection was lodged until the date of the hearing.

The same set of facts set out in CA-00031032-001 were presented in support of this complaint.

I recommend that the parties implement the decision set out in CA-00031032-002.

CA-00031032-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977-2015.

I am required to establish if the complainant was unfairly dismissed.

Relevant Law.

Section 6(1) of the Unfair Dismissals Act, 1977 states 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 “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”

The respondent’s letter of dismissal of 20 March sets out the conduct which to their mind warranted the complainant’s dismissal. It stated

“Not following procedures whereby, you loaded a van and didn’t follow correct procedures for same.

Lying about the matter whereby you said colleagues undertook it when in fact you did causing us to lose faith in you

Subsequent financial loss to the company due to customer complaint. The full order had to be issued free of charge in order to repair damage done (to the respondent’s name)”

The letter of dismissal went on to state that the respondent expected a supervisor to oversee the dispatch of goods to the standard expected by the respondent. He failed as a supervisor to exercise the degree of scrutiny required to ensure that the respondent’s goods arrived intact at their destination and without posing a threat to the welfare of any member of the public or of staff.

Did reasonable grounds exist for the respondent to conclude that the misconduct warranted dismissal?

It is accepted that the goods dispatched to the respondent’s client arrived in a damaged state, were unusable and that the respondent suffered a financial loss. What is not clear and is contested is where responsibility lies for the insecure manner in which the goods were dispatched. In arriving at a decision as to whether the respondent’s decision to dismiss was not unfair I am guided by earlier decisions on the scope of a decision-making body charged with addressing complaints of unfair dismissal.

In Mullane v Honeywell Aerospace Ireland Ltd, UD 111/2008, The tribunal stated

“The Tribunal is not required to determine whether the claimant did or did not carry out the alleged act”.

In Danceglen Ltd T/A Dunboyne Castle & Spa v Fernando Riberio, UDD1839, the Labour Court stated

“It is not for the Court to substitute its view for that of the Respondent in this case. It is rather for the Court to determine whether the decision to dismiss was within the range of responses of a reasonable employer in the same circumstances.”

But I am required to consider whether on the basis of all the evidence submitted, the respondent, in all of the circumstances, had reasonable grounds to believe that the allegations levelled against the complainant were justifiable and manifested conduct which warranted a dismissal.

The first reason cited for the dismissal was

“Not following procedures whereby, you loaded a van and didn’t follow correct procedures for same.

The respondent was unable to furnish any SOP or other procedure which the complainant had breached. That is not to say that the absence of a written procedure undermines the legitimacy of the respondent’s expectation that a supervisor would exercise oversight about the security of goods and ensure their arrival, intact, at their destination. The complainant seems to have accepted that the driver on occasions did not anchor the goods to the truck or strap them down. But the letter of dismissal cited a breach of a procedure. The respondent accepted that the driver was also responsible for the failure in securing the goods on his truck prior to dispatch to the customer. This demonstrates that the complainant was not wholly responsible for the degraded state of the goods on arrival. It indicates a lack of certainty about who was responsible for the implementation of the various stages of the procedure concerning the dispatch of goods. In addition, the notes of the first investigative meeting held on 6 March with the warehouse manager come across as a problem-solving exercise with an intention to firm up procedures in the future.

The second reason cited for the dismissal was

Lying about the matter whereby you said colleagues undertook it when in fact you did causing us to lose faith in you

The evidence distilled down demonstrates that in investigating how the debacle occurred, the complainant though not forthright did not completely offload responsibility onto to A and B but said at the first investigative meeting on 6 March that” A and B probably packed the load”

On being shown the CCTV footage at the second investigative hearing on 7 March, he accepted that he had loaded the goods on to the truck. Ultimately the fault lay in the fact that the goods though wrapped, and this was accepted by the Director, were not strapped down in the truck.

Subsequent financial loss to the company due to customer complaint. The full order had to be issued free of charge in order to repair damage done (to the respondent’s name)”

I find that the respondent was steadfast in his opposition to the complainant’s proposal to reimburse the company and stated that despite the offer from the complainant the reimbursement would take two months’ salary.

I find that it was reasonable for the respondent to conclude that the conduct complained of conforms to “Failure to carry out all reasonable instructions or follow our rules and procedures “cited as an instance of major misconduct found in the respondent’s disciplinary procedure.

I find that it was reasonable for the respondent to conclude that giving the green light for the dispatch of unsecured goods while in charge of the operation amounts to “Taking part in activities which result in adverse publicity to ourselves, or which cause us to lose faith in your integrity,

And constitutes “serious breaches of health and safety rules that endanger the lives of employees or any other person.”

These are cited as instances of gross misconduct in the respondent’s disciplinary procedure.

I accept the unanchored state of the brick slivers posed a threat to a person in proximity to the truck. I accept that the employer’s expectation that, he, the supervisor would oversee the safe dispatch of goods so that they arrive intact at a customer was reasonable. I find that the respondent was entitled to expect that the supervisor would acknowledge that he was significantly responsible for the debacle. This is more especially the case so as to avoid a recurrence. The complainant stated in evidence that he is the final decider on goods to go. The complainant, in addition, was on a final warning. The respondent’s procedure provides for dismissal where either major misconduct or gross arises while the complainant is on a live final written warning.

I find that based on the ultimate responsibility which rests with the supervisor to ensure the safe dispatch of goods and based on his ’on/off’ acceptance of responsibility and involvement, the decision to dismiss is within the range of reasonable responses of a reasonable employer.

Conduct of the employer.

Section 5 of the Unfair Dismissals (Amendment) Act 1993 allows for regard to be had to the conduct of the employer in determining if a dismissal is unfair.

The Labour court in UD 1933 Slonecczko Limited trading as Breadski Brothers v Agnieszka Kopacz stated

“there are certain fundamental requirements of fair procedures that cannot be dispensed with regardless of the particular circumstances that arise in an individual disciplinary matter. They include: (i) the requirement to make to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process; (ii) the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process”;

The report of the investigative meeting conducted by the ware house manager on 7 March concluded that the manner in which the complainant

“not only loaded the goods in question knowingly without any packaging and allowing the truck to leave the yard thereby leaving all concerned in danger of their health and safety is a matter of gross misconduct”

In concluding thus, the respondent warehouse manager not merely decided that the complainant’s actions should lead to the initiation of the disciplinary process against him but that his action amounted to gross misconduct. The respondent’s disciplinary procedure, paragraph (d), states that the preliminary to a disciplinary hearing is the investigative meeting, the purpose of which is to establish “whether a formal disciplinary hearing ought to be conducted”. That is the limit of its scope. It is the function of the disciplinary hearing and not the investigative hearing to establish if the complaint had engaged in major misconduct or gross misconduct. The notes also state that the warehouse manager reminded the complainant at the investigative meeting that he was on a final warning.

I find that upon entering into the disciplinary hearing a decision had been taken that his actions amounted to gross misconduct and was weighted against him.

I accept that he was handed a copy of the disciplinary procedure which h provides for representation at a hearing, but he wasn’t expressly advised.

Was the person conducting the appeal tainted? The CEO did state that the complainant was untrustworthy because of a previous incident. There were four directors in the company. He declined the offer of compensating for the damage wrought to the goods. He viewed the offer as evidence of the complainant’s acceptance of responsibility.

The respondent’s own notes indicate that though requested, the respondent failed, despite assurances to the contrary, to provide the complainant with a copy of the procedure which he was alleged to have breached. The complainant was at a disadvantage defending himself at appeal stage against an allegation that he had breached a procedure when the procedure or the checklist specifying what he was required to do from the time the truck arrived in the yard to its departure with the goods was withheld from him. Even in the absence of a written procedure the respondent should have set out the various stages to him and how he had disregarded same.

There was a leap from the director stating that he would go through the procedures with him to dismissing him.

I find that there were procedural defects. I find therefore that on procedural grounds, the complainant was unfairly dismissed.

I find the complainant contributed to a significant extent to his own dismissal.

Mitigation of loss.

The complainant failed to attempt to mitigate his loss. He advised that he applied for no jobs. He referred to family events and being unwell at some point. No medical evidence to support same was provided.

Redress.

The complainant stated that he wished to return to his job. I do not recommend this remedy.

I am guided by the Labour Court in Coad v Eurobase (UD1138/2013) which required that a complainant should “employ a reasonable amount of time each weekday in seeking work”. The complainant did not do that.

I decide to award him the sum of €2924, equal to a month’s salary in compensation for the breach of the Act of 1977 -2015.

CA-00031032-001 Complaint under section 13 of the Industrial Relations Act, 1969.

I recommend that the employer Implement the decision set out in CA -00031032-002 below.

CA-00031032-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977-2015.

I find that the complainant was unfairly dismissed. I require the respondent to pay the complainant the sum of €2924 in compensation for this breach of the Act of 1977-2015.

Procedural defects.