Complainant

Respondent

Parties

Michael  Tobin

Mikcon Ltd T/A Limerick Packaging

Representatives

Mr Gerard Tobin

Mr Pat Barriscale BL instructed by Browne & Murphy Solicitors

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-00043767-001

27/04/2021

The Complainant commenced part-time employment on 12 February 2018 as a truck driver. He worked an average 24 hours per week at a rate of €14.42 per hour. He is also employed in the Defence Forces on a whole-time basis.  The Complainant submits that he was unfairly dismissed by the Respondent on 19 February 2021 after he filled out accident report forms regarding an incident earlier that day.  The Respondent denies that there was a dismissal and instead asserts that the Complainant remains in employment but that the company was advised by the Complainant that he was engaged in the Covid 19 vaccination process with the Defence Forces and that his availability for work was thereby curtailed. As the fact of dismissal was in dispute, the Complainant was asked to open his case at the beginning of proceedings.      

The Complainant submits he was unfairly dismissed by the Respondent without reason, prior warnings or proper procedures.    

The Complainant gave evidence that on 19 March 2021 he was involved in a road traffic accident in Cork. He stated that he made no admission of liability at the scene. He stated that he was called to the Respondent’s office at the conclusion of his days work and asked to fill out accident report forms, which he did. He said that the Managing Director, Mr Connie Ryan had told him that “he was finished here” and he, the Complainant made no reply as he claimed it was a long day. However, he felt that the words he heard from Mr Ryan indicated that he was dismissed. He gave evidence that he had received no communication from that day with regard to available work but that he had contacted the Transport Manager Mr Conor Hogan by text on 25 March 2021 with the following wording” Safe bet on no work soon any time soon boss”. He claims there was no reply from Mr Hogan. He received no communication from the Respondent company since the accident, other than a clarification on the status of his licence, and he claims that he can only assume that he was dismissed by the Respondent on 19 March 2021 after the accident.

He gave evidence that he told Mr Hogan in early February 2021 that his hours may be restricted on account of his involvement as a member of the Defence Forces in the administration of the Covid 19 vaccine. However, it transpired that he was not required for the hours he had originally thought would be necessary and claims that he was working as a driver with the Respondent during the vaccination period in question.

In cross-examination he denied that he had given false information in the accident report forms, based on subsequent examination by the Respondent of footage from the truck camera. He accepted in cross-examination that in attempting to mitigate he was only seeking part-time and not full-time work.

The Respondent submits that the Complainant has not been dismissed either unfairly or otherwise.

On 19 March 2021 the Complainant was involved in an accident in Cork with another vehicle. On his return to work, later that evening, he completed with Mr Connie Ryan, Managing Director, an internal accident report form together with a form for the Respondent’s insurance company. In relation to his alleged statement that the Complainant ‘was finished here’, Mr Ryan in evidence said he was referring to the process of the filling out of the accident report forms. Mr Ryan also said that even though  the Complainant  was still on the books, he (the Complainant) would be required to go through a disciplinary procedure before he resumed work, because upon further checking of the report forms with camera footage from the truck, he believed the Complainant was not truthful in his account of the accident and that he (the Complainant)  was at fault for the accident, and not the other driver.

Mr Louis Keegan, Quality and Health and Safety Manager, gave evidence that the footage from the truck dashcam differs completely from the Complainant’s statement and would suggest that the Complainant was completely at fault for the accident.

Mr Conor Hogan gave evidence that the Complainant had told him in the week before the traffic accident that he would not be available for work for the foreseeable future as he had to work in his capacity as a serving member of the Defence Forces. He gave evidence that he understood that it was the Complainant who would make him aware of his availability. In further questioning Mr Hogan did not deny that there may have been interaction between the Complainant and himself in early to mid-February with regard to the Complainant’s expected role in the administration of vaccines.    

The Respondent submits that the Complainant has not made himself available for any work with the Respondent since 19 March 2021. If he were to do, he would first be subject to investigation/disciplinary procedures under the Company’s Staff Handbook and would not be allowed to work until that was concluded.    

This case pivots around the fundamental issue of whether an actual dismissal as defined by the Unfair Dismissals Acts 1977-2015 (the Act) has taken place, and if there was a dismissal to determine then if the dismissal was either fair, or unfair.

 A complaint of unfair dismissal referred under Section 8 of the Act requires a dismissal to have taken place as a  requirement by virtue of Section 6  which provides: “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 1 of the Act defines “dismissal” in relation to an employee in the context of a complaint of unfair dismissal as “(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,” This wording places the burden of proof of the  fact of dismissal on the employee, where it is put in dispute, and it is not until that has been established that the onus of proving that the dismissal was not unfair rests with an employer.

The Complainant relies on the words of Mr. Ryan when he said “you are finished now” on the evening of 19 March 2021. Mr. Ryan said that he meant that the proceedings of that day had finished i.e. the filling out of accident report forms; the Complaint understood otherwise – that his employment was terminated. Evidence was given by Mr.  Ryan that he had been contacted by the secretary of the other person in the accident earlier in the day to the extent that the Complainant was at fault and admitted liability. Understandably, Mr. Ryan had every reason to be upset that day with what seemed like, on the face of it, unacceptable behavior   by the Complainant regarding proper reporting of the accident, as well as causing damage to the company truck and the other car.  The further information he received from Mr. Keegan early in the following week convincingly showed that the Complainant’s account did not tally with the truck’s dashcam footage. Mr. Ryan also gave evidence in a signed statement submitted to the hearing, as well as in verbal testimony, that it was his intention to issue the Complainant with a very serious warning for falsifying two documents, for misleading him about the account of the accident and for not taking photos, as he was trained to do. Notwithstanding the fact that there seemed to be a predetermined outcome before any disciplinary process was initiated, the Respondent neither issued a letter nor otherwise communicated to the Complainant on the very urgent and serious matter of disciplinary charges to be laid before him. Mr. Ryan stated that the Complainant was still on the books and no valid reason was given by the Respondent as to why this hearing did not take place, and more importantly, perhaps, why such a planned meeting was not communicated to the Complainant.

The pivotal argument of the Respondent was that they had understood from the Complainant that he would not be returning to work because of his Defence Forces duties in the administration of Covid 19 vaccines. Mr. Hogan gave evidence that he was informed of this by the Complainant sometime in the week preceding the accident of 19 March 2021. Mr.  Hogan did not deny that he had a close working relationship with the Complainant, as befits the role of a Transport Manager, but he was rather vague and not convincing as to when he first heard of the possible restrictions on hours worked by the Complainant. The Complainant gave cogent evidence of a text and associated conversation on this matter in late February 2021. Furthermore, I note that the national vaccination campaign began in late December 2020 and I found the evidence of the Complainant, that he had been working for the Respondent whilst working very limited hours with the Defence Forces on vaccination duty, to be more plausible.

Having considered all the evidence on the fact of dismissal I conclude that the Respondent’s argument that the Complainant remained on the books after the accident but was to be the subject to an investigation/disciplinary process at the end of the vaccination period, whenever that might be, not to be credible. The fact of matter is that the complete lack of communication on a grievous matter, to a purported current employee, suggests that the Respondent no longer considered that the Complainant was to be given further work. I find that on the balance of probabilities and considering all the evidence on this matter that the Complainant discharged the burden of proving that there was a dismissal.       

 The burden of proof now shifts to the Respondent to show that the dismissal was fair.      

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provides:

“(7) 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 or the Labour Court, as the case may be, 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.”

The Respondent gave no evidence of having enacted any measures with regard to proper investigation and disciplinary procedures therefore I find that the Complainant was unfairly dismissed.

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal

(1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) 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, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (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 of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in 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.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and 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 pay and benefits in lieu of or in addition to pay.

 The Complainant submitted that he is seeking compensation for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. The Complainant gave very weak evidence in this regard. Firstly, he stated that he was looking for part-time hours only to accommodate his whole-time employment in the Defence Forces. Secondly, no convincing evidence was supplied by him on the detail of his endeavours in looking for work. On the issue of contribution, there was convincing evidence to suggest that the Complainant was responsible for a traffic accident, despite his protestations otherwise. I conclude that his behaviour and reporting to management after the accident was not that of a reliable employee and therefore he contributed significantly to his dismissal.  I find that the correct compensation under the circumstances to be €1,730.00, the equivalent of 4 weeks wages.   

I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay the Complainant the sum of €1,730.00

Unfair Dismissal, Fact of Dismissal, Mitigation of Loss.