ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027746

Parties:

	Complainant	Respondent
Anonymised Parties	Account Executive	Management Services Company

Representatives

Rory Kennedy BL, Aisling O'Leary Solicitor & John O'Leary Trainee of John O’Leary & Co Solicitors

Aisling O’Mahony, Grainne Murphy

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00035556-001	02/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00035556-002	02/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00035557-001	02/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00035557-002	02/04/2020

Date of Adjudication Hearing: 05/10/2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as an Account Executive from 23rd May 2016 to 6th December 2019. He was paid €25,000 per annum. He has claimed that he was unfairly dismissed and has sought compensation.

The Respondent has rejected this claim.

The complaints CA 35557-001 and CA 35557 - 002 are duplicates. Therefore, no decisions will be made in respect of these complaint applications.

1) Unfair Dismissals Act CA 35556-001

Summary of Respondent’s Case:

The Respondent stated that the Complainant requested time off for a medical and a creche appointment, but he was unable to confirm these. There was no mention of his GNIB card. The Respondent was unable to facilitate the time off due to short notice. He refused to attend work on that date and time and so was in breach of the Absence, Reporting and Sick Leave Policy. They carried out an investigation meeting. He was not given notice as it was informal. He was offered to be accompanied at the meeting but he declined. He stated that the medical appointment was for his wife. The Respondent stated that as part of a ‘housekeeping’ exercise they discovered that his GNIB card had expired on 2nd November. He responded that he was unaware of the expiry of his card until it was pointed out by an Official at Dublin airport when he returned to Ireland shortly beforehand. He failed to advice the Respondent. He was then placed on temporary leave until his card was renewed. This was confirmed in writing. Subsequent to this meeting they issued three letters and emails on 21st,28th November and 6th December requesting an update on his card renewal process. The letter of 28th November pointed out that if he didn’t respond his employment would be terminated. They received no response. The address and e-mail address were as informed by the Complainant. As they had received no response they decided to terminate the employment. He arrived at the office on 9th December without an appointment and he was advised by the Head of People that as they had received no communication from him, his employment was terminated. They understood that as he had not replied to them he must have been unable to secure the renewal of his card. They rejected the claim that he was unfairly dismissed.

Summary of Complainant’s Case:

The Complainant’s Representative stated that he requested time off for 11th November 2019. The Respondent did not facilitate him and so he told them that he couldn’t attend work. He was told that that was not an option. He attended work at 10.30 and at 11.30 he was called into an investigation meeting about unauthorised absence. He was not informed in advance of the meeting of its purpose. It was brought to his attention that his GNIB card had expired. He had made an appointment for 18th November and it normally takes 2-3 weeks before the card would be issued, sometime between 2nd to 9th December. He was placed on temporary leave as his card had expired. The Respondent sent three letters to him, but he never received them. The address used was not his current address and the emails were not received either as they went into his Junk Mail box. The Respondent never ‘phoned him. The letter dated 6th December confirmed his termination with effect from 11th November despite his contract of employment providing for 4 weeks’ notice. On 9th December he attended the Respondent’s office with his renewed card. He then discovered that he had missed a number of letters and emails as advised by the Head of People. It was confirmed that he did not have relevant proof of right to work and so his employment was terminated. They stated that it must be shown that there were substantial grounds justifying the dismissal. The sole reason for the dismissal was the renewal of the card and this was done. They cited Bank of Ireland v Reilly in support. The dismissal lacked fair procedure and did not comply with S.I.146/2000. This provides that allegations must be put to the employee concerned, given the right to respond fully, given the right to representation and a right to a fair and impartial determination. He was not given the right to representation at the investigation. It is unclear what was the reason for the dismissal. He was being investigated for absence then the issue became the GNIB card. Capability then became the issue. They cited Bolger v Showerings (Ireland) Ltd [1990] ELR 184 and others in support. They stated that the Respondent did not have substantial grounds for dismissal. He was told to return to work when he got the card renewed, he did that, but he was dismissed and given the reason that he failed to engage with the Respondent. The Complainant acted at all times reasonably with Respondent. When they dismissed him he was not given minimum notice. He was not given the right of appeal. He believes that he was unfairly dismissed. He is seeking compensation. He tried to mitigate his loss. He applied for some jobs and he set himself up as a driving instructor. He supplied details of his earnings and has stated that his loss to date is €23,863.22.

Findings and Conclusions:

Substantive Matters

I note that the Complainant absented himself from work without permission on 11th November.

I note that the Respondent then discovered that the Complainant’s NGIB card was out of date and he had not renewed it or advised them of that fact.

I find that he was ineligible to work without this card.

I find that he failed to be clear with his employer why he wanted the time off on that day.

I find that upon his return to work later that day he was called to a meeting for the purpose of investigating his unauthorised absence and the status of his NGIB card.

I find that he advised them that his card was out of date and that he had become aware of this sometime earlier when he returned from his native Brazil and he failed to notify them.

I find that the Respondent was correct to place him on temporary leave pending the renewal of the card.

I find that the Complainant failed to keep in contact with the Respondent.

I find that the Respondent sent a total of three letters to his address on their files and also copied them by e-mail.

I note that the Complainant advised that the address was not correct as he had failed to notify the Respondent of the change and also the e-mails went into his junk file and he didn’t access them.

I find that the Complainant was responsible for his actions.

I find that the onus rested with him to notify the Respondent of his change of address.

I find that he failed to keep his employer abreast of the card renewal process.

I find that the Respondent acted reasonably up to the point of the decision to dismiss.

I find that it was reasonable for the Respondent to conclude that he had encountered difficulties with the renewal and so was not returning to work because he had failed to respond to their letters and emails.

I find that the Respondent had sufficient grounds for terminating the employment at that point in time.

I find that the dismissal was substantively fair.

Procedural Matters

I find that the Complainant acted unreasonably by absenting himself from work without permission.

I find that the Respondent was obliged to carryout an investigation which they referred to as informal.

I find that the Respondent not only dealt with the unauthorised absence, they also raised the issue of his GNIB card, which they had in the meantime discovered that it had transpired.

In those circumstances I find that the Respondent should have advised him in advance of the purpose of the meeting.

I note that they stated that he was offered representation at the meeting, but he declined.

I find that this would have been a reasonable response from the Complainant as he was unaware that they were going to discuss the GNIB card as well as his unauthorised absence.

I find that the Complainant failed to notify the Respondent of the change of his address.

I also note that he alleges that the emails went into his junk file, but that was his responsibility to check there as well.

I do not find that the Respondent should have also telephoned him. It was the Complainant’s responsibility to keep the Respondent updated on the status of the renewal.

I find that he failed to do so.

I note that the second letter sent on 28th November pointed out that if he failed to respond his employment would be terminated.

I find that they acted reasonably up to that point.

I find that they then acted with undue haste in terminating his employment.

I find that the letter of dismissal dated 6th December affirmed that the dismissal was with effect from 11th November.

I find that that was wrong and I note that the Respondent accepted this at the hearing.

I find that he was entitled to minimum notice which he did not receive.

I find that he should have been called to a meeting before they terminated his employment and give him a final opportunity to explain himself.

I find that they failed to provide him with the right of appeal.

For these reasons I find that the dismissal was procedurally unfair. This has rendered the dismissal unfair and compensation is warranted.

I note his efforts to mitigate his loss which went some way towards doing that however I am not satisfied that he approached mitigation with any determination that is required as is set out in the below case.

In the Employment Appeals Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

I find that the Complainant has contributed substantially to his dismissal by his failure to renew his card on time, his failure to inform his employer of the status of his card, his failure the keep in contact with his employer during the renewal period, his failure the notify his employer of his change of address, his failure to properly check his emails, these failures must be reflected in the quantum of the award. Also, his efforts to mitigate his loss must also be reflected the quantum of the award.

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 above stated reasons, I have decided that the dismissal was unfair.

I have decided that this claim is well founded.

I have decided that the Complainant has contributed substantially to his dismissal, which must be reflected in the quantum of the award.

I have decided that the Respondent should pay the Complainant compensation of €6,250 which represents 13 weeks’ pay.

2) Employment Equality Act CA 35556-002

There was an issue with parallel complaints, unfair dismissal and discriminatory dismissal. This was drawn to the Complainant’s attention by the Commission. The Complainant did not respond within the 41-day period so the complaint under the Employment Equality Act is deemed to have been withdrawn.

Dated: 11/11/2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Unfair dismissal