Complainant

Respondent

Anonymised Parties

A Construction Worker

A Construction Company

Representatives

N/A

Lisa Weatherstone BL Peninsula

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-00034430-001

04/02/2020

The complainant commenced employment as a general operative with the respondent on 30th May 2016 and was paid a salary of €586 per week. He was dismissed on the grounds of gross misconduct on 26th August 2019.

The complainant stated that he received a phone call from the respondent’s office manager on 12th August regarding his hours for the previous week. He stated that he had been drinking heavily over that period and was in the middle of a black out when she called him. He informed her that he had work two days the previous week and also confirmed this via email. He further alleged that it should have been obvious to the office manager when she spoke to him that he was suffering from the ill effects of excessive alcohol consumption.

He said that when he received his payslip on 19th August, he checked with a colleague to see what days he had worked in the week beginning 5th August because he had only been paid for 1 day. His colleague initially informed him that he worked 2 days but later recalled that he had not worked at all that week. As a result, the complainant telephoned the project manager and informed him that he had not worked over the previous week and that he had submitted his hours in error.

Following notification of this error, the complainant was contacted by the managing director and asked if he had submitted his hours in error. When he acknowledged that he had, he was suspended with pay. He subsequently attended a disciplinary hearing with the respondent on 22nd August and was informed on 26th August that he was dismissed on the grounds of gross misconduct. He stated that he wished to have representation at the disciplinary hearing but that he had allowed his union membership to lapse and therefore had no one to represent him. He stated that he did not appeal the decision because he also had no representation.

The complainant signed a contract of employment and also acknowledged receipt of the company’s employee handbook when he started his employment on 30th May 2016. Given the nature of the business, with employees spread in small numbers of all over construction sites in Dublin, the respondent operates an honour system in terms submitting working hours. Specifically, employees themselves submit their hours on a weekly basis and they are paid on the basis of these hours. The respondent repeatedly reminded all of its employees in writing of the importance of submitting the hours accurately and highlighted that a failure to do so would result in them being dismissed on the grounds of gross misconduct.

On 12th August 2019, the respondent’s office manager telephoned the complainant to get his hours for the previous week. Having informed her that he had worked on the 6th and 7th both verbally and via email, he highlighted to his manager, when he received his payslip on 19th August, that he had only been paid for 1 day instead of the 2 he had claimed. He quickly realised that this was an error and notified his manager that he had not in fact worked at all the previous week.

In light of this, the complainant subsequently met with the respondent’s MD on 19th August and acknowledged that he had fraudulently submitted hours worked on 6th and 7th August. He was subsequently requested to attend a disciplinary hearing on 22nd August before another company director and was offered the opportunity to bring representation.

The complainant explained at the disciplinary hearing that he had submitted the incorrect hours because he had had a blackout due to excessive alcohol consumption over the previous few days. The respondent did not accept this as a reasonable excuse and dismissed him on the grounds of gross misconduct. Despite being offered an appeal, before another company director, the complainant chose not to appeal his dismissal.

Section 6 (7) of the Unfair Dismissals Acts 1977 to 2015 states that:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer….. considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

In line with (7) (a) above, my job, as the Adjudication Officer in this case, is therefore not to establish the guilt or innocence of the complainant but rather to decide if the respondent acted reasonably. This view is supported by the EAT decision in Looney and Co Ltd v Looney UD 843/1984:

‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.’

In line with (7) (b) above, and the procedures applied to the dismissal, I note that while the investigation carried out by the respondent was brief and only involved speaking to the complainant, he admitted his wrongdoing, namely that he had submitted incorrect hours both verbally to the office manager and subsequently via email. Given his statements, I believe that it was reasonable for the respondent not to carry out any further investigation thereafter and to proceed to a disciplinary hearing on the basis of the complainant’s admission.

Much was made by the complainant of the fact that the office manager had not been spoken to during the investigation or at the disciplinary stage, because she would have known from the telephone conversation with him that he was not in a right state of mind due to the after effects of excessive alcohol consumption on the day that he submitted his hours. I consider it reasonable however that the respondent relied on the emailed hours that the complainant had sent as well as his subsequent admission that he did so and did not therefore need to involve the office manager in the process.

The complainant also asserted that another colleague should have been spoken to during the process because he had misled the complainant about the hours he worked. This miscommunication however occurred a week after the complainant had submitted the incorrect hours and so would not have been relevant for the purposes of either the investigation or the disciplinary hearing given that he was ultimately dismissed for submitting falsified hours.

I note also that the conduct of the disciplinary hearing was fair, that the complainant was given the opportunity to prepare, to state his case, to be represented and that the decision maker took some time to reflect on his decision to ultimately terminate the complainant’s employment.

On the question of not appealing the decision internally, I consider the Complainant’s failure to do so, on the basis that he had no representation, not to be reasonable and note that in An Employee v An Employer ADJ 0000381 (12 April 2017) on the subject of appeals, the Adjudication Officer stated:

‘An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction”.

Having therefore carefully considered this case in detail, I am satisfied for the reasons set out above that the dismissal was both substantively and procedurally fair.

I find that the complainant was not unfairly dismissed.