ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00021894

Parties:

Complaint(s):

Date of Adjudication Hearing: 10/01/2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is seeking compensation for unfair dismissal where he maintains he was dismissed without due procedures or being aware of the basis of his dismissal. The Respondent maintains the Complainant was fairly dismissed due to gross misconduct.

Summary of Respondent’s Case:

The Respondent advised the Complainant commenced his employment on 19th November 2006 as a General Operative. It submitted that during the Complainant’s employment, he presented with unacceptable behaviour where the Respondent referred back to an incident in 2015 when the Complainant was subject to a warming from his manager about his behaviour. The Respondent also advised that over the time of the Complainant’s employment the Managing Director and others had to speak to the Complainant with regards his inappropriate behaviour.

The Respondent submitted that on 6th March 2019, it received a complaint from its Office Manager relating to the alleged behaviour of the Complainant that morning. The Respondent submitted that during the clock in period that morning the Complainant behaved inappropriately towards the Office Manager who is a female colleague. It submitted that there was CCTV footage demonstrating the behaviour of the Complainant where the Respondent alleged the Complainant had come very close to the face of Office Manager and that she felt intimidated. The CCTV footage was not available at the hearing.

The Respondent advised that the Complainant was invited to a meeting that afternoon at 2.30pm to discuss the matter. The meeting was conducted by the Office Manager and another Manager attended the hearing. An employee representative was also asked by the Respondent to attend to accompany the Complainant. The Respondent advised that the Complainant had sought to have his Line Manager attend that meeting but in light of the previous experience where it was alleged that eh Complainant had threatened the line manager and his family, the Line Manager was not in a position to attend.

The Respondent advised that the Complainant was not in a position to respond to any of the issues put to him with regard to his behaviour stating that he had no comment. As a result, the Respondent maintained the meeting was not productive and was closed. Following the meeting, the Respondent submitted that the employee representative who had been asked to attend the meeting advised the Respondent that she had felt threatened by the Complainant before the meeting where she was told not to talk and to keep her mouth shut.

Following the meeting, later on that afternoon on the shop floor, the Respondent maintained that the Manager who attended the meeting had experienced further abuse from the Complainant. The Manager submitted that the Complainant had made comments to him stating “Tiocfaidh ár lá”. The Respondent maintained this comment was of significant and was taken seriously in light of the connections the Complainant has to a relative who they believe has subversive elements, and fopr which the Complainant has a nickname of Bomber. The Manager reported his concerns to the Office Manager and to the Managing Director advised he would support the concerns. The Manager therefore decided that he would issue a letter of dismissal to the Complainant based on this behaviour. The Manager maintained that he sought advice from a HR Consultant who told him that was the correct course of action to take. In addition, the Managing Director having heard what happened, gave the authority to the Manager to issue the letter of dismissal.

The Respondent submitted that the following morning, when the Complainant arrived at work, he was issued with a letter of dismissal. The letter indicated that the Purchasing Manager had decided the Complainant’s employment was to be terminated due to the Complainant’s intimidating behaviour towards staff members and his bad attitude on the warehouse floor which was affecting other workers. The letter of dismissal advised that the termination would take effect immediately and that the Complainant had a right to appeal to the Managing Director.

The Respondent maintained that it suggested a number of dates for the appeal where it wrote to the Complainant on 13th March 2019 and again on 29th March 2019. An appeal hearing was planned for 10th April 2019. Tthe Complainant advised that he was not in a position to attend the appeal hearing. The Respondent submitted that it received no further information from the Complainant until 15th April 2019 where the Complainant was outlining the grounds of his appeal and where he felt he was dismissed before any proper investigation had been carried. In this letter. The Respondent advised that it heard nothing further from the Complainant regarding the appeal until the complaint was submitted to the Workplace Relations Commission.

At the hearing, the Respondent acknowledged that the alleged incident in 2015 was not subject to a formal disciplinary process, and no record was maintained of that incident. It further advised that it would have spoken to the Complainant in the intervening years on a number of occasions with regards to his behaviour but would have dealt with these matters informally on the advice of its HR Consultant. The Respondent also maintained that the Managing Director had spoken to the Complainant on a number of occasions where on at least one of these occasions, in or around March 2018, the Complainant’s behaviour had been unhelpful towards the Managing Director. The Respondent therefore maintained that the Complainant had been advised that his ongoing behaviour would not be tolerated. Accordingly, the issues that occurred on 6th March 2016 were in effect the catalyst that led to a decision to dismiss him.

The Purchasing Manager who issued the letter of dismissal advised he was not aware of the disciplinary procedures but had been informed by the Office Manager who had a HR responsibility in the business that it was in order for him to issue the letter of dismissal. The Purchasing Manager also advised that when he referred to the Managing Director, the Managing Director sanctioned the letter of dismissal.

In his evidence, the Managing Director confirmed that having heard what the Purchasing Manager had told him about the behaviour of the Complainant, particularly in relation to what he would have said to the Purchasing Manager on the shop floor on the afternoon of 6th March 2019, his threatening behaviour towards the employee representative prior to the meeting on 6th March 2019, and the Complainant’s alleged conduct towards the Office Manager on 6th March 2019, that it was in order to dismiss the Complainant. The Managing Director advised he was not aware of the HR policies and the disciplinary procedures in the staff handbook but in effect, the behaviour of the Complainant was unacceptable to him and that was the reason why he authorised the dismissal of the Complainant.

Legal Submission

The Respondent stated that the conduct of the Complainant which gave rise to his dismissal was intimidating and threatening behaviour of a serious nature. It maintained that the dismissal was procedurally fair and was a disciplinary sanction coming within the margin of proportional responses to the conduct of the Complainant. It denied that its processes, including the investigation into the Complainant’s wrongdoing, the disciplinary process, and the appeals process were procedurally unfair.

The Respondent stated in the event that some procedural unfairness is identified, it contended that as per Section 6(1)(a) of the 1977 Act “having regard to all the circumstances the dismissal was fair”. In this regard, the Respondent referred to juris prudence in Elstone –v- CIE (High Court, 13th March 1987, unrep) it was held that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the Court. An appeal is clear from the provisions of S.6(1), that regard must be had to all the circumstances and not to one circumstance to the exclusion of all others. The Respondent further referred to Loftus and Healy –v- On Bord Telecom (High Court, 13th February 1987, unrep) where it was held, “regard must be had to all the circumstances” and that “the primary consideration is to determine the ground for the dismissal”. The Respondent therefore argued that it follows that a flaw in a disciplinary process does not render a dismissal unfair in and of itself. The Respondent was denying there was a procedural flaw. It further stated that it must be established that if a flaw did occur, it imperilled a fair result. Referring to Short –v- Royal Live Assurance Limited [2008] IEHC 322, Laffoy Joutlined that a central consideration to fair procedures is whether or not any purport or breach of natural justice was “likely to imperil a fair hearing or a fair result”. The Respondent argued that this decision was followed on from that of Baron J in Loftus and Healy –v- On Bord Telecom cited above, where it was determined that the real question was “not whether the Plaintiffs’ were deprived of hearings to which they were entitled, but whether the denial to them of such procedures is such that the Defendant must be deemed to have failed to established the assaults as the whole or main reason for justifying their dismissal”. The Respondent further referred to RSA Medical Limited, t/a Park West, the Royal College of Surgeons in Ireland [207] IECA288 which quoted fair procedures did not dictate the outcome of the process… There are of course no absolutes in law or life and there are occasions when the rules of fair procedures have to give way because of pressing exigencies to less considered or reflective processes. In support of this, the Respondent further referred to Kelly –v- CIE (Circuit Court 11th February 1985) which determined if in all the circumstances, there are substantial grounds to justify the dismissal, then the decision of management to that effect is not to be subjected to interference from the Tribunal nor from this Court of Appeal. The policy of the [1977] Act is, as I read it, that if the dismissal is not an excessive or otherwise unjustifiable remedy on the part of the employer in all circumstances, then it must stand. The Respondent also referred to McGee –v- Beaumont Hospital where the EAT held the task of the Tribunal is not to consider what sanctions its Tribunal might impose, but rather whether the reaction of the Respondent and the sanction posed lay within the range of reasonable responses.

The respondent's admitted that the complainant was summarily dismissed for gross misconduct and as a result was not entitled to minimum notice. In light of the foregoing it argued it respectfully submitted that the Complainant’s application should fail.

Summary of Complainant’s Case:

The Complainant advised that on the morning of 6th March 2019, when clocking in for work, there was an issue with the clocking in machine which caused some discussion amongst the staff. In addition, he would have asked the Office Manager to take note that a colleague of his had advised that he was not attending work and was looking for leave. The Complainant alleged that the Office Manager snapped back at the Complainant stating that she didn’t start work until 9.00.am He then advised the Office Manager that his colleague wanted to put the previous Tuesday as a day’s holiday and the Office Manager again snapped back stating that she had already done the wages and it was too late to put it as a day’s holiday.

The Complainant advised that at 10.30am on 6th March 2019 he was approached by the employee representative who advised him that the Office Manager wanted to have a meeting with him in the Boardroom at 2.30pm. The Complainant asked what the meeting was about but the employee representative said she was not aware. She returned five minutes later to state it was a matter regarding the incident that happened earlier at the clock machine. The Complainant sought his own Line Manager to attend the meeting with him but he advised his own Line Manager refused to attend. Instead he was advised that either the Purchasing Manager or another Manager could attend. He maintained that neither of these Managers’ worked on the shop floor and he again asked that his line attend the meeting.

The Complainant said that the meeting started by the Office Manager talking to him about intimidating her at the clock in machine and he responded by stating what he recalled had happened that morning. The Complainant also asked permission to record the meeting, but he was advised he could not do so and that the Office Manager would be recording the meeting. The Complainant said that the Office Manager asked him questions and he said he had no comment which he repeated as the questions were being asked. The Complainant submitted that the Office Manager got “ratty” and then stated to tell him that he would not be getting a pay rise because he would have to upgrade his skills. The Complainant advised that he had no computer skills and this had become an issue for him in being able to progress his career. He was upset at the hearing within when recounting this matter and maintained that he had been bullied over not being able to use the computer.

The Complainant also advised that throughout his time at work he had been bullied by his colleagues and by management, and he would have reported his concerns to a client of the Respondent who audited the work practices within the warehouse. (It was explained at the hearing that the Respondent provided services to a large retail organisation and as part of the contract for providing these services, they are subject to regular audits of all issues including HR). The Respondent acknowledged that the Complainant would have written to its client’s auditors with regards to certain matters but denied that the Complainant had ever raised formal or informal complaints of being bullied.

In response to the allegation of the Complainant’s behaviour towards the employee representative, the Complainant maintained that he had asked the employee representative not to talk at the meeting and that he would do the talking. The Complainant denied that he ever threatened her in the manner alleged.

The Complainant maintained that when he returned to the workplace after the meeting he did not mention or say “Tiocfaidh ár lá” to the Purchasing Manager. He advised he was back at his workplace and he would have been doing his packing. He submitted that he would have used the F word to himself as he was packing. However, he strongly denied that he would have used the terms alleged, and equally he denied that he would have been referred to the “Bomber”. The Complainant contended that all this information was new to him at the hearing. The Complainant maintained that he did have a relative but other than that he drew no connection with that relationship and to the comments that were being now shared about him at the hearing. The Complainant further advised that he would have been subject to bullying behaviour where a work colleague would have been attempting to stick a pen in his neck, but all of these complaints would not have been addressed by the Respondent when they were raised at the time.

The Complainant advised that when he attended work the following morning, the 7th March 2019 he was handed a letter by the Purchasing Manager. When he asked what that letter was, he was told he was being fired and it would be explained in the letter. The Complainant was not allowed enter the warehouse and a colleague went and collected his belongings and he left.

The Complainant maintained he was never offered any procedure with regards to the decision to dismiss him. He denied that he was difficult or that there had been a difficult relationship with management.   The Complainant submitted that he would have been shouted at by the Managing Director when attempting to address his concerns and that a telephone would have been thrown at him during one of those conversations. Notwithstanding, the Complainant advised he was not never subject to any formal procedure, never advised that his ongoing behaviour would lead to his dismissal, and he therefore could not understand why he would have received the letter on 7th March 2019.

The Complainant further maintained that he sought to appeal the dismissal but that he was not invited in for an appeal hearing. The Complainant maintained he did not receive the letter of 13th March 2019 inviting him to an appeal hearing, but that he did receive a letter on 29th March 2019. He maintained that the letter presented at the hearing within dated 13th March 2019 was never sent to him and in responding to the letter of 29th March 2019 inviting him to an appeal meeting on 10th April 2019 he explained he was not in a position to attend on 10th April 2019 and that he was also seeking further information to allow him participate in the appeal hearing. The Complainant maintained he wrote to the Respondent again on 15th April 2019 seeking further information and outlining the grounds of his appeal, but this letter was not responded to and he was never invited in for a rescheduled appeal hearing.

The Complainant advised that he was somewhat disadvantaged due to his lack of IT skills to seek further employment. He submitted that between March and September 2019 she had made some 25 attempts in seeking employment and stated he had many other examples. He found alternative employment and is currently working 2/3 days a week as a Labourer where he earns €200.00 per week, which represents an ongoing loss of €400 per week.

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states [w]ithout 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… inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

Having considered the evidence presented to me, the Respondent has based its decision to dismiss the Complainant “due to the fact of your intimidating behaviour towards staff members and your bad attitude on the warehouse floor which is affecting other workers”. The dismissal took place by way of a letter on 7th March 2019 from the Purchasing Manager to the Complainant following alleged incidents on 6th March 2019 including where the Complainant supposedly spoke in an intimidating manner to the Officer Manager; where the Complainant allegedly spoke in an inappropriate manner to an employee representative who was nominated to represent him at a meeting to discuss the comments made to the Office Manager, and where the Complainant is alleged to have threatened the Purchasing Manager on the afternoon of 6th March 2019 by stating Tiocfaidh ár lá. The Respondent’s evidence was that the Managing Director approved the dismissal, based on what he had been told and on his previous experiences with the Complainant.

The Complainant was entitled to have a fair process at all stages of the disciplinary procedures. The application of fairness applies not only to the steps as set out in the Company’s procedures, but also in the impartiality of those tasked with exercising due process. In light of the potential consequences of the case within, an outcome was that he could lose his job and livelihood. This is the severest of sanctions that can be imposed on an employee, and therefore the processes applied need to meet high standards of probity as is evidenced in many tribunal findings relating to unfair dismissals.

The Respondent’s disciplinary procedures states that the disciplinary rules set standards of performance and behaviour, whilst the procedures are designed to help promote fairness and order in the treatment of individuals. It is our aim that the rules and procedures should emphasise and encourage improvement in the conduct of individuals, where they are failing to meet required standards, and not be a means of punishment. The procedures further state that disciplinary action, where necessary, is taken speedily and in a fair, uniform and consistent manner. The disciplinary rules and procedures identify that rudeness towards other employees, objectional or insulting behaviour or bad language are examples of major misconduct. The policy states disciplinary action for first occasion of major misconduct will result in either a written warning or final written warning and the second occasion will result in a final written warning or dismissal.

The procedures outline that on occasion it may be necessary for the company to conduct an investigation meeting to clarify a particular instant or occurrence prior to any potential disciplinary hearing. It states such an investigation should be carried out by a designated member of the management team or if necessary, in the case of any possible conflict of interest an agreed external third party. It further states that the investigation meeting itself should not be interpreted as a disciplinary hearing as no disciplinary sanction would ever be issued on foot of an investigatory meeting. Instead, the facts established in an investigatory meeting may be used to identify whether or not a formal disciplinary hearing ought to be concluded. The policy also states an employee will not normally be dismissed for a first breach of discipline, except in the case of gross misconduct or some other substantial ground. It states that an employee would only be disciplined after careful investigation of the facts and the opportunity to present their side of the case at a disciplinary hearing. If disciplined an explanation of the penalty imposed would be provided and where the employee would have a right to appeal against the finding and the penalty.

The policy also lays out the disciplinary appeals procedure where an appellant should apply within five working days. The procedure states the appeal will normally be conducted by a member of staff not previously connected with the disciplinary process so that an independent decision into the severity and appropriateness of the disciplinary action can be made. The procedures as set out are, in general, consistent with 146 of 2000: Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000.

Having considered the above, despite taking external HR advice, I find the Respondent has not adhered to its own policy and procedures. It is common to the parties that the Complainant was alleged of speaking to the Office Manager in a threatening manner on the morning of 6th March 2019 and the Office Manager reported her concerns to the Purchasing Manager. The Complainant was invited to a meeting that afternoon to review this issue. The Respondent has contended this meeting was an investigation of the matter. The Office Manager chaired the meeting which also attended by the Purchasing Manager, an employee representative nominated by to accompany the Complainant, and the Complainant. It is alleged the Complainant shrugged his shoulders and did not respond to the allegations of his earlier behaviour towards the Office Manager. The note of the meeting referred to meeting being called by the Office Manager to tell the Complainant if he had an issue or grievance with her that he could go through a proper process and that there was a procedure to follow. It was also noted the Office Manager was going to give the complaint a copy of the Handbook so that he could see the process. It therefore appears at this stage the intention of the Respondent was to advise the Complainant of any transgressions or concerns he might have and what procedures should be followed.

It is clear that this meeting was not intended to be an investigation or a disciplinary process. However, the Respondent now wishes to rely upon this meeting as a stage in the dismissal procedures to dismiss the Complainant. In addition, the Office Manager who had raised the complaint about the Complainant’s alleged behaviour was chairing that meeting and where that meeting itself seemed to have deteriorated into what one of the Manager’s called a non-meeting. Fair principles and due process require that the person deciding on a complaint should have no interest or part in that complaint. I am therefore clear that a fundamental breach occurred with regards to the conduct of that meeting and the injustices offered to the Complainant particularly in light of the potential outcome of that meeting, and where the Respondent is now relying on the meeting a part of its disciplinary procedures.

After the meeting the employee representative allegedly disclosed to the Purchasing Manager that she was told by the Complainant in a threatening manner before the meeting to say nothing and to keep her mouth shut. It was further maintained that the Complainant later that afternoon threatened the Purchasing Manager on the shop floor by stating Tiocfaidh ár lá. No investigation was conducted of the issues that took place after the meeting, yet the Respondent now chooses to rely on these matters as another basis for dismissing the Complainant. The fact remains is that the Respondent never confronted the Complainant with these allegations, never investigated them, and never conducted a disciplinary process before deciding to dismiss the Complainant.

The policy then requires a disciplinary hearing before a dismissal can take place. This step meets with good practice, however in this case no such disciplinary hearing took place. What occurred is that the Purchasing Manager spoke to the Managing Director on the evening of 6th March 2019 and a decision was made to dismiss the Complainant. The Managing Director maintained it was a reasonable decision based on the Complainant’s behaviour, and because he had previously dealt with the Complainant about his behaviour the Managing Director authorised the dismissal. Despite relying on the previous events, no record of the Managing Director holding previous discussions with the Complainant about his behaviour were presented to the hearing. For his part the Complainant contended the Managing Director’s evidence of previous events was not correct and it was the Managing Director who threw a phone at the Complainant. Whatever the circumstances, the historical matters are disputed and significantly there is no record available to corroborate that the Complainant was in fact subject to any informal or formal disciplinary procedures before the incident on 6th March 2019. What is evident is the Complainant after attending a meeting was dismissed without the Respondent following its own procedures. In authorising the decision, the Managing Director in his evidence contended that he was not aware of the disciplinary procedures that should be followed.

The Respondent has contended the Complainant was afforded an appeal process. The evidence supports that the Complainant did issue a letter of appeal on 11th March 2019 which was within the five working days allowed for in the Appeals procedure. In raising his appeal, the Complainant sought the specific reasons being relied upon with regard to his intimidating behaviour towards staff members and the bad attitude on the warehouse floor which is affecting other workers which was the basis of his dismissal. It is common to all the parties that such allegations were not given in detail to the Complainant prior to his dismissal, and the Complaint was not afforded a disciplinary hearing to respond to the alleged incidents. By not affording the Complainant a disciplinary hearing the Respondent ignored a key step in its own procedures, and where this approach is also contrary to the principles as laid down in the aforementioned SI 146 of 2000. Furthermore, the Managing Director who had authorised the dismissal had appointed himself to hear the appeal.

The Complainant again contacted the Respondent by email on both 19th and 27th March 2019 seeking an update regarding the appeal and requesting the information he had asked for to be forwarded to him. In responding to the letter of appeal the Managing Director wrote back to the Complainant on 29th March 2019 to confirm the Appeal Hearing was scheduled for 10th April 2019. The letter was received on 2nd April 2019. The specific information requested by the Complainant relating to the allegations was not provided in this letter, and the Complainant was advised he would be shown CCTV footage at the appeal hearing. As it stood the Complainant had not been confronted about the alleged events after the meeting on 6th March 2019, yet the Respondent has submitted it was relying on these events and previous events as part of the reason it decided to dismiss the Complainant.

The Complainant responded on 8th April 2019 advising that he was not available on 10th April 2019 due to a prior arrangement. This letter was not responded to.   The Complainant again wrote to the Respondent on 15th April 2019 seeking a full written record of the allegations made against him and outlining the basis for his appeal which included the contention that there was no investigation into the matters.   The Complainant received no further correspondence from the Respondent. The Complainant subsequently submitted his complaint to the WRC on 29th May 2019.

I therefore find the Complainant was not provided with an opportunity to appeal the decision of his dismissal and the Respondent’s assertion to the contrary is gratuitous and misleading. It is evident the Complainant had indicated he was not available on the date of the Appeal Hearing and he sought to engage with the Respondent to reschedule the meeting but the Respondent ignored that request, and in any event has not issued any findings to the appeal.

In summary I conclude the Respondent decided to dismiss the Complainant based on untested allegations, and without any proper investigation or disciplinary hearing into the matters. Furthermore, those making the allegations, namely the Office Manager and the Purchasing Manager played a key part in informing the decision to dismiss. The Managing Director who authorised the dismissal also appointed himself to hear the appeal and then did not progress with providing the Complainant with a fair opportunity to have the appeal heard, ignored the Complainant pleadings for information regarding his dismissal, and failed to conclude the appeal process. The Respondent’s assertion that the Complainant failed to provide details in relation to the appeal carries no merit and to the contrary I find it is the Respondent that failed to progress the appeal.

Overall, whilst there may have been concerns about the Complainant’s behaviour, I find that the Respondent in its actions on 6th and 7th March 2019, acted in an entirely unfair manner without providing any due process whatsoever to the Complainant and took the opportunity, for whatever reason, to dismiss the Complainant on 7th March 2019. The only element of its policy it appears to have observed is that disciplinary action was taken speedily. In operating with such haste the Respondent failed to provide the Complainant with fair procedures, and if such procedures were provided a probable outcome might have been a breach of major misconduct which according to the Respondent’ policy would fall short of a decision to dismiss in the first instance. The Respondent in presenting its evidence is hiding behind an extremely shoddy and prejudicial process in which it is clear the Complainant would never have had an opportunity to have the allegations against him dealt with reasonably or be provided with a fair process to respond to them. The blatant disregard to its own procedures have contributed to the flaws that have occurred at all stages in the process.

Referring to the jurisprudence presented by the Respondent, the Respondent appears to be indicating that it was the behaviour of the Complainant which was the most significant factor leading to his dismissal and even if it had conducted a fair process, the outcome would have been similar. It therefore argued that any failure in its procedures would not have impacted on the result. It argued irrespective of any failings in its own procedures it was the behaviour of the Complainant that justified his dismissal. However, as already referred to above, within its own policy the nature of the alleged wrongdoings, if they were found to have occurred, amount to major misconduct which in the first instance would not lead to dismissal.

I therefore find the entire process, based on the acts and omissions of the Respondent to be highly prejudiced and extremely unfair to the Complainant. As the matters were never investigated by the Respondent, I am not in a position to determine with any level of reasonableness that the Complainant significantly contributed to the decision to dismiss him. As already identified, if he was found to have behaved as alleged according to the Respondent’s own policy, as it was the Complainant’s first recorded instance of such behaviour, it should only have led to a written warning or final written warning and not a dismissal.

I therefore uphold the complaint and find the Complainant was unfairly dismissed.

Decision:

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.

For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought compensation, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; 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; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

In circumstances where the Respondent has failed to adhere to its own procedures, and in so doing has failed to provide the Complainant with an opportunity to have the allegations against him be properly investigated, has failed to afford him a disciplinary hearing, and failed to properly conduct an appeal process, I find the Respondent acts and omissions are of such a prejudicial and biased nature that the Respondent has breached its obligations under the Act.

I find the Complainant, who is not a highly skilled operative, made reasonable efforts to seek employment to mitigate his loss, and in September 2019 found alternative employment which at the time of the hearing and most likely into the foreseeable future will leave him at a financial loss.

Therefore, based on the Complainant’s earnings at the time of dismissal being €600 gross per week, I consider it just and equitable in all the circumstances to award the Complainant €36,400 reflecting the actual losses and ongoing future loss of earnings.

The Respondent is therefore ordered to pay the Complainant a total of €36,400 in compensation (subject to any lawful deductions).

Dated:   7th May 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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