Complainant

Respondent

Anonymised Parties

Warehouse Operative

Freight Company

Representatives

N/A 

 N/A

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-00036357-001

26/05/2020

The Complainant was employed as a Warehouse Operative with the Respondent who runs a freight business.   The employment commenced on 25/01/2016 and following a serious complaint from one of the Respondent’s main customers about the Complainant he was dismissed on 05/05/2020. His gross monthly salary was €3,000.

The Complainant worked for the Respondent for over four years and he was suspended with pay following a complaint from a customer representative (Ms A). This was the first complaint about him during his employment with the Respondent. He reported the problems with this customer to the warehouse manager following an interaction, but the manager did not do anything. While on suspension he was invited at short notice to an investigation meeting 05/05/2020 and was dismissed at the end of that meeting.

The complainant was unhappy with the investigation as he was not allowed to produce e mails which would show that the same customer representative (Ms A) had duplicated many mistakes. These mistakes made his work almost impossible as he could not dispatch orders until they were rectified by Ms A. He was frustrated at the lack of support from the Warehouse manager in dealing with these issues. The Complainant outlined that he was a diligent worker and had been involved in special projects such as preparing quarterly inventories and ensuring that all parts were measured, weighed and serial numbers checked.

In relation to the interaction with Ms A the Complainant was surprised to get a call from her as she did not have his work mobile number. The Complainant queried why she did not contact his supervisor in relation to the problem. He was very busy on the day and as he was not an IT person Ms A should not have contacted him to sort out the system errors. It is the Complainant’s view that the day he received the telephone call from Ms A was his “unlucky day”. He does not see what offense was caused and therefore fails to see how he could be dismissed after four and a half years of impeccable work. If there was a risk in losing the customers business, it was not made clear to him. The Complainant submits that there is a long-standing relationship between the customer and the company and that continues to this day.

It is the Complainant’s position that the Respondent used the complaint as an opportunity to dismiss him. The Complainant also submits that the process used by the Respondent was flawed and was treated “unfairly and unilaterally judged”. The Complaint outlined his particular concerns in relation to the process:

a)       The Respondent’s CEO and Sales Director met the Complainant on 28/04/20 and informed him that he would be suspended with pay pending the outcome of an investigation in relation to the incident with the customer on 28/04/20

b)      The Respondent’s CEO and a fellow Director (Ms B) conducted the investigation.

c)       The Respondent’s CEO and a fellow Director (Ms B) met with the Complainant on 05/05/20 as part of the investigation and at that meeting issued him with a dismissal decision.

d)      The Complainant was given very short notice of the meeting which was sent by registered post and collected on the morning of the proposed meeting. He was unable to organise a colleague to attend due to the short notice and travel restrictions then in place

e)      The Complainant did not have any opportunity to call witnesses

f)        The Complainant was not allowed any opportunity to meet and question witnesses at the meeting on 05/05/20

g)       The Complainant submits that he refutes that he was aggressive and angry at the meeting.

The Complainant submits that the Respondent treated him in a manner which was not fair and notes that the speed with which the company dismissed him confirms that they used a “long-awaited opportunity to get rid of the ‘uncomfortable employee’”.

The Complainant has obtained occasional work for some weeks following his dismissal and later obtained more regular employment. Details were provided at the hearing.   The Complainant is seeking financial compensation for the financial loss suffered as a result of his dismissal.

The Respondent is a long-established independent freight express company. Their success is due to ensuring that their customers’ expectations are met.   They provide a seamless freight management services to customers both at home and overseas.   The Respondent places significant emphasis on the fact that they are a service company and in that context their business relies almost exclusively on the reputation and service they provide to their clients.

On 28th April 2020 the CEO received a phone call from a very distressed and shaken customer (Ms A). This customer outlined that she was the recipient of she described as a rude and aggressive conversation with the Complainant. She said that the Complainant had an issue with her because she was female and that another (male) colleague is never treated in this manner by the Complainant. The Complainant queried where she got his number and she explained that it was given to her by the Respondent. This was a company telephone and therefore there was no issue about the giving the number to Ms A. Ms A felt that it was important for the CEO to be aware of “what I have to deal with on occasions from your staff.” She also provided copies of e mails from the Complainant to her which also caused her concern.

The CEO was most concerned at this complaint. He contacted a senior manager in the customers company to let him know that what was alleged to have happened was “unacceptable, intolerable and against the company ethos.” He assured the manager that the matter was escalated internally and would be dealt with.

The CEO also outlined that he had asked his warehouse manager to monitor things to ensure that the customer requirements were met and to ensure that they continued to do business with the Respondent. This company represented over 40% of the Respondents business and a loss of this business would have devastating consequences on the company and its employees.

The CEO and Sales Director met with the Complainant and informed him of their concerns following the receipt of the complaint. Of concern were the use of words used by the Complainant such as “woman mistakes” and language which was unacceptable towards a female customer. The Complainant was advised that he would be suspended on full pay pending the investigation and they would do their best to conduct the investigation promptly.

The CEO and another Director undertook the investigation and met with the various people involved.   Following that it was decided to meet with the Complainant to outline to him the evidence gathered. He was informed of the meeting by registered letter which seems to have been delayed due to a public holiday.

At the meeting on 05/05/20 the CEO outlined that the customer was one of their top customers with whom they had completed a rate restructure to retain their account.   Due to the nature of the interaction which the Respondent felt was unprofessional, and insulting towards a major client, it fell within the scope of gross dismissal in their disciplinary policy. The only outcome was that he would be dismissed from the company and this was confirmed to him.

The Complainant requested to work in another area, but this was not possible. He also asked the Respondent to ask the company who lodged the complaint against him if it was right that he should be dismissed.   He also said that “this woman has ruined my life” and felt that it was not right that a complaint from “someone low down” the company should be taken so seriously.

The Respondent denies that it was looking for an opportunity to dismiss the Complainant.   A previous disciplinary warning had expired and was not connected with the current issue. It was the Complainant who sought to link them.   It was submitted by the Respondent that at no stage did the Complainant express any remorse for what had happened. The Respondent was concerned that the potential loss of the account would have a devastating effect on the company and a number of employees.

The Respondent highlighted four examples where they had exercised discretion in relation to the Complainant and submits that these are not examples of a company who wants to get rid of an employee. The first was in relation to sick pay and they extended the Complainants entitlement.   On another occasion there was in fire in the Complainant’s apartment block and the Company offered to pay for his stay in a hotel until his apartment was habitable. A more recent example was when the Complainant had booked a two-week holiday in Spain and if he travelled during the Covid-19 Pandemic he would have to self-isolate for two weeks on his return. Rather than have this scenario the Company paid the Complainant the value of the holiday. Finally, the company paid him two weeks pay as a gesture of good will.

The Respondent submits that they had no option but to dismiss the Complainant. They had to act promptly, and the Complainant was given every opportunity to outline his version of events.

This is a complaint pursuant to the Unfair Dismissals Act. The Complainant commenced employment on 25/02/2016 and ended on 05/05/2020. He worked as a Warehouse Operative and was paid €3,000 gross per month.

The fact of dismissal is not in dispute.

The legal onus is on the Respondent to show that the dismissal was not unfair. In this case, the dismissal arose from the receipt of a serious complaint from an important customer. The evidence was that the Complainant had interacted in an unacceptable manner with the customer representative and her complaint was escalated.

I have listened carefully to the evidence tendered and considered the documentation of both parties.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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,

(c)     The redundancy of the employee, and

(d)    The employee being unable to work or continue to work in the position he held without contravention (by him or his employer) of a duty or a restriction imposed by any statue or instrument made under statute.”

Furthermore, Section 6 (6) of the Unfair Dismissals Act 1977 places an onus on the employer which provides:

“In determining, for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

The burden of proof lies with the Respondent to show that the Complainant’s dismissal was fair. In formulating a decision, I am conscious that in my role as an Adjudicating Officer, I must not assume the mantle of an employer regarding the facts in any case.   My role is to decide whether, within the so-called band of reasonableness of decision making, an employer’s decision is not unfair. The band of reasonable test was considered by the Irish High Court in Bank of Ireland v Reilly ([2015] IEHC 241. In that case, Noonan J looked at S 6(7) of the Unfair Dismissals Act 1977 and outlined that it provided that a court have regard to the reasonableness of the employer’s conduct in relation to a dismissal. He stated:

“That is, however, not to say that the court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”

It is not my function to determine if the dismissal was the correct sanction. It is my function to determine if the sanction of dismissal came within the “band of reasonableness” cited in the above referenced cases. I am guided by the jurisprudence of the High Court in the case of Bank of Ireland. In all the circumstances of this case I find that the action of the Respondent in dismissing the Complainant for gross misconduct were within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s dismissal.

The importance of fair procedures in cases involving dismissal on grounds of misconduct has been set out in our case law. The Respondent’s disciplinary Policy and Procedure are detailed and outlines the actions which will be taken if the company rules are breached.     A paragraph under the heading “Natural Justice” states:

“As a fair employer we aim to follow the principles of natural justice. This means that employees will be given the opportunity of a meeting with someone who has not been involved in the matter. The employee will be informed of the allegations against them prior to any meeting and given the option of a fellow employee.   A date and time will be notified, and the investigation will take place quickly and fairly. The employee will be given the right to challenge the allegations. NB.   Where possible we will aim to ensure a different manager will conduct the investigation, disciplinary and appeals process. This may mean an outside party is involved due to the size of the organisation.

If you wish to appeal against any disciplinary decision, you must appeal in writing within 5 working days of a decision being communicated to you by the Managing Director.”

In this case the sequence of events is relevant:

Meeting 1: (28/04/2020) Complainant informed that he was suspended with pay pending investigation. This meeting was conducted by the CEO, and another senior manager (Mr X).   The Complainant attended and was not represented.

Investigation: This was conducted by the CEO and a Director. A total of four witnesses were interviewed. The Complainant was invited to attend an “Investigation Meeting” as part of this process.

Meeting 2: (05/05/2020) The Complainant was issued with written notice of an “Investigation Meeting” which was to be conducted by the CEO and a senior manager (Mr X). The Complainant attended and was not represented. The Complainant received the registered letter on the morning of the meeting.   At this meeting the Complainant was dismissed, and this decision was confirmed in writing the same day. There was no appeal process outlined in this letter.

The WRC and Labour Court have consistently emphasised that an employer is required to follow fair procedures before it decides to dismiss an employee. The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

The Code of Practice emphasises that good practice entails several stages in the discipline and grievance process:

-          That employee grievances are fairly examined

-          That details of any allegations or complaints are put to the employee concerned

-          That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

-          That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

-          That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The recent decision of the Court of Appeal in Iarnród Eireann v McKelvey [2018] IECA 346 gives clear guidance on the precise employee rights when an employee is faced with allegations of gross misconduct. Mr McKelvey had been accused of fraudulently using a fuel card.   Although the case concerned the right to legal representation in a disciplinary case, which was subsequently adjudicated upon in the Supreme Court, the Court of Appeal took the opportunity to positively reaffirm and identify the precise rights to which Mr McKelvey was entitled as part of fair procedures in a formal disciplinary procedure:

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

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

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

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

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

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

The Complaint in this case was entitled to the same rights.

There are serious procedural flaws in the investigation process, disciplinary hearing and appeal process which resulted in the dismissal of the Complainant. Of concern is the presence of the CEO at all stages of the process. As the Complainant was not represented at any stage there was an obligation on the Respondent to comply with the principles of natural justice, their own procedures and acceptable practices as outlined in the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The short notice of the Meeting 2 on 05/05/2020 given to the Complainant represents a further serious shortcoming by the Respondent in terms of fair procedures and robust procedures.

I also accept the Complainant’s evidence that there was no internal appeal process available given the manner in which the dismissal was carried out. The Respondent showed no regard to the principles of fair procedures and natural justice or indeed its own procedures.   In that context the dismissal in this case is unfair from a procedural perspective.

However, I do find that the Complainant contributed to the situation he found himself in. He provided no credible explanation for what occurred and did not accept that the incident had the potential to cause the loss of a significant customer.

I accept the Respondent’s evidence that the lack of remorse at any stage by the Complainant was a significant contributory factor in their decision to dismiss.

Redress:

Mitigation of Loss. Section 7 (2) of the Act deals with compensation and mitigation of loss.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to –

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved by the Minister,

(e) the extent any) of the compliance or failure to comply by the employer, relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal …

(3) In this Section –

“financial loss” in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu or in addition to pay.”

The Complainant provided details of the part time work obtained and also details of full-time employment which was obtained. There was a total of eight weeks when the Complainant did not find any work. The Complainant did not provide any documentary evidence at the hearing. I am satisfied, on the balance of probabilities, that the Complainant has sought to mitigate his loss and is currently in full time employment. The reference figure for the period is €750 per week and the total loss is €6,000.   I also considered the extent to which the Complainant’s conduct contributed to the dismissal, as is required under section 7(2) (b) of the Act. I am satisfied that the Complainant contributed to the dismissal and damaged the Respondent’s trust and confidence in him. Notwithstanding the Complainant’s contribution to the dismissal I find that this was negated by the Respondent’s disregard for proper procedures and the principles of natural justice. Having taken all matters into account I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Act is well founded and I award him compensation of €6,000.

I find that the Complainant was unfairly dismissed, and I award him compensation of €6,000

Procedures, unfair dismissal,