ADJ-00028709

Complainant

Respondent

Parties

Paul  Scales

Euro Car Park Ireland Limited Euro Car Parks

Representatives

  In person.

Aidan McGrath ARAG Legal Protection

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-00038749-001

04/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038749-003

04/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00038749-004

04/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00038749-005

04/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00038749-006

04/07/2020

The Complainant was employed by the Respondent company as a patrol officer, employment commenced on 2nd June 2007 and ended on 23rd March 2020.

The Complainant worked 18 hours per week for which he was paid € 792.00 per month.       

This complaint was received by the Workplace Relations Commission on   9th July 2020. The complaint contains a total of 6 separate complaints, these are as follows:

CA – 00038749 – 001 - Complaint submitted under s.8 Unfair Dismissals Act, 1977.

CA – 00038749 – 003 – Complaint submitted under s.77 of the Employment Equality Act, 1998.

CA – 00038749 – 004 – Complaint submitted under s.39 Redundancy Payments Act, 1967.

CA – 00038749 – 005 – Complaint submitted under s.12 of the Minimum Notice and Terms of Employment Act, 1973.

CA – 00038749 – 006 – Complaint submitted under s.25 of the Protection of Employees (Temporary Agency Work) Act, 2012.

Note:

All particulars pertaining to CA – 00038749 – 002 are contained within file reference ADJ –00036343.

The Complainant was a patrol officer in a supermarket car park and contends that he always received tips from customers around Christmas time. The Complainant states that he was told he could keep these coins.

On the day of his alleged dismissal he was being trained by the training supervisor in how a new system of ticketing would be operated.

The training supervisor claimed that he witnessed the Complainant taking money from customers and putting this money into his pocket.

When the National Operations Manager arrived, he spoke to the Complainant who contends that during this discussion he was given the choice to either be dismissed or to resign from employment.

The Complainant, given these two options said he would resign and the National Operations Manager wrote out a note of resignation and the Complainant signed it. This note was also signed by the training supervisor.

The Complainant also stated that he had never been the subject of a disciplinary procedure during his years with the Respondent company.

The Complainant has issued two complaints which, he claims, arise out of identical circumstances. He is claiming unfair dismissal pursuant to the Unfair Dismissals Acts, see complaint number CA-00038749-001. He then  claims discrimination pursuant to the Employment Equality Acts, 1998, see complaint number CA-0038749-003, arising out if identical circumstances as those upon which he relies on in pursuit of his unfair dismissal claim. The Complainant has not outlined any details of the alleged discrimination; however, he appears to claim that he alleged dismissal was a discriminatory  dismissal.

(b)   Section 101(2) of the Employment Equality Act 1998 states as follows:

Where an individual has referred a case to the Director General under section 77(1) and either settlement has been reached by mediation or the Director General has begun an investigation under section 79, the individual – …

if he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 2015 in respect of the dismissal, unless the Director General, having completed the investigation and in appropriate case, directs otherwise and so notifies the complainant and respondent.

Section 101(4) states:

Anemployeewhohasbeen dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if-…

(b)an adjudication officer has made a decision to which subsection (1) of section 8 of the Unfair Dismissals Acts 1977 applies in respect of the dismissal.

Section 101(4A) states:

Where an Employee refers –

(c)    A case or claim under section 77, and

(d)   A claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then from the relevant date, the case or claim referred to in subparagraph (i) shall be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

It is submitted the complainant is obliged therefore obliged to elect as to whether he wishes to pursue his claim pursuant to the Unfair Dismissals Act, 1977 or the Employment Equality Act 1988.

Factual Background

The Complainant commenced employment with the Respondent on 1st June, 2007 as a car park Patrol Officer.

On or around the 19th February 2020 the Complainant was undergoing training at a car park in Naas. The training was in relation to switching the parking system from pay and display to an APECS system. Up to and including that date, Euro Car Parks operated a Pay & Display car park  at this store. The supermarket owners were removing the charging regime from the next day, and instead, an APECS system was being implemented. This is a non-charging system whereby customers are subjected to a maximum stay free of charge but no payment would be required. As a result, the Complainant was required to be retrained. The training was being provided by DL, the Respondent’s Training Officer. At around 12.00pm                                 a   customer approached the Complainant and handed him money which the Complainant placed in his pocket.

DL challenged the Complainant on his behaviour, initially he denied taking the money, before he admitted that he took and retained money from a few customers. DL informed the Complainant that he would need to inform the Respondent’s National Operations Manager, regarding what he had just observed. DL telephoned National Operations Manager at in or around 12.10 on the 19th February 2020. DL set out an account of what he had seen in an email to National Operations Manager on the 26th February 2020.

The National Operations Manager attended the premises at in or around 12.30, where he initially spoke to DL. He then spoke to the Complainant regarding the issue. The Complainant was asked about the incident and confirmed that he had taken money from the customer. The Complainant was informed that taking money which was meant to be used to pay for parking, was stealing and was not permitted as per the terms of the Complainant’s Contract of Employment nor the Company’s Staff Handbook. The Complainant denied that it was stealing. He was then asked if he had taken money from anyone else. He initially denied that he had, before admitting that he had in fact done so on numerous occasions.

The Complainant was informed that the matter would have to be progressed though the company disciplinary procedure. The Complainant sought information regarding the possible outcomes of the disciplinary process. He was informed that if it was established that he was taking money this could be considered as gross misconduct and may result in dismissal.

The Complainant was insistent that he did not want to progress matters though the disciplinary procedure, and indicated he wished to resign his position. The National Operations Manager stated that if he wished to resign he would have to do so in writing. The Complainant then decided he wished to resign his position with immediate effect and a written resignation was signed by the Complainant. It was agreed that the Complainant would receive a reference.

Unfair Dismissal CA-00038749-001

The Complainant was not dismissed from his position as alleged or at all. The Complainant resigned his position.

The Complainant was observed taking and retaining money from a customer, he admitted doing so. Subsequently, in conversation with both DL and the National Operations Manager, he again admitted taking money from customers of the Respondent and retaining said money. The Complainant admitted that he had engaged in this behaviour on numerous occasions. Moreover, the Complainant indicated that he saw nothing wrong with this behaviour and initially claimed that such behaviour was not stealing. The conduct of the Complainant at issue, satisfies the definition of theft pursuant to section 4 of the Criminal Justice (theft and Fraud offences) Act, 2001.

The Complainant made admissions with regard to taking the money. It is submitted that in such circumstances and given that the Complainant stated he wished to resign, and then resigned in writing, that there was in fact no dismissal, but a voluntary resignation on the part of the Complainant. The Complainant was fully entitled to utilise the disciplinary procedure had he wished to do so, but explicitly stated he did not wish to, instead, he very clearly indicated that he wished to resign to avoid the risk of a potential dismissal for gross misconduct. It would be a nonsense to argue that the Respondent is not entitled to accept the Complainant’s resignation in such circumstances. The employer is absolutely entitled to accept the resignation.

Without prejudice to the foregoing, should the Adjudication Officer find that the Complainant was dismissed from his employment, which is denied, it is submitted that any such dismissal was entirely fair and proportionate in  the circumstances.

The conduct of the Complainant was such that it would in most situations warrant summary dismissal. The sanction of dismissal in such circumstances falls squarely within the band of reasonableness to which an employer must adhere. It is submitted that even in the absence of adequate procedures, which is denied, the conduct of the Complainant is such that it would not render any purported dismissal unfair.

Without prejudice to the forgoing, if there were defects present in the procedures used by the Respondent, which is denied, said defects are such that they do not render the process or the outcome of the process flawed to such an extent that it would invalidate the outcome reached. In that regard the Appellant relies on the case of Atkinson v Cope Foundation (UD483/2015). In that case the EAT states as follows:

“This division finds as a matter of fact and require it to be note that the disciplinary procedure utilised by the Respondent and the manner in which it was applied fall far below the acceptable standards and were at best contradictory in nature as for example it was stated in evidence on behalf of the Respondent that as an organisation the Respondent could not maintain someone in employment charged with or convicted of a criminal offence yet the Claimant was permitted to return to work and did so from August 18, 2014 to October 8, 2014, albeit at a different facility but in direct contact with clients and service users

Furthermore the human resources manager on behalf of the Respondent have evidence that the communication of the direction of the board to dismiss the claimant on November 25, 2014 was made to her by the then CEO, who herself was the person who apparently was to have no involvement at all in the dismissal process, yet was the person who heard the appeal of the dismissal in what seems to be a contravention of the basic tenets of the respondent’s disciplinary procedures and process.

This division notes that the Claimant withdrew his appeal of his conviction to the Circuit Court, which was a tacit acceptance of his conviction.

Notwithstanding the foregoing his division finds that the decision to dismiss, on balance, was within the range of reasonableness and in the circumstances the dismissal is fair. The claim under the Unfair Dismissals Acts, 1977 to 2007 therefore fails.”

In the current circumstances the Complainant made admissions with regard to his conduct, which it is submitted were sufficient to bring his conduct within the range of gross misconduct, regardless of any perceived procedural unfairness, which is denied in any event on the part of the Respondent.

If it is held that there were procedural defects in accepting the Complainants resignation or otherwise, which is denied, it is submitted that on balance such defects do not render the dismissal unfair in all the circumstances.

While the Respondent reiterates that its procedures were adequate in all the circumstance, if it were found to be the case that they were not adequate, then Respondent also relies on section 7(2) of the Act which states as follows:

‘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 –

…

(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.

  (e) the extent (if any) to which the conduct of the employee… contributed to the dismissal

It is submitted that the Appellant contributed 100% to his dismissal by his conduct. Consequently, therefore should it be found that the Appellant was unfairly dismissed, any award contemplated by the Adjudication Officer should be reduced to nil.

In that regard, reliance is placed on the case of A General Operative vHeating and Plumbing Services ADJ-00015407, In that case, despite the procedure used to dismiss the employee being described at ‘hopelessly flawed from a procedural point of view’ the Adjudication Officer in that case awarded only 8 weeks’ pay. That particular case, involved a violent conformation between two employees. In the current circumstances, the conduct of the Complainant is similarly unacceptable.

Furthermore, in Paul Dusa v Synergy UDD1911 the Labour Court while finding that the Appellant in that case had been unfairly dismissed as a result of the inadequacy of the procedures used to dismiss him, the court nevertheless reduced the Appellants award to nil given inter alia his contribution towards his own dismissal.

If it is held that there were procedural defects in the manner in which the Complainant left his employment which render the dismissal unfair, which in itself is denied, it is submitted that the conduct of the Respondent in all the circumstances are such that any award being considered by the Adjudication Officer should be reduced to nil.

Losses

While the Respondent denies that the Complainant has been unfairly dismissed as alleged or at all, should the Adjudication Officer find that the Complaint has been unfairly dismissed, the Respondent makes the following submissions in relation to any redress that may be ordered.

In the present circumstances, the relevant provision of the act is section 7(2)(c), which states as follows:

‘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 –

…

(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

The Respondent is unaware at present as to the Complainant’s alleged loss, or to any efforts taken to mitigate her loss, however as a general submission it refers to the decision of Coad v Eurobase UD1138/2013. The following is noted:

‘In calculating the level of compensation the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal in Sheehan v Continental Administration Co. Ltd. (UD858/1999) that 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’

In the absence of evidence tending to prove that the Complainant has ‘spent a reasonable amount of time each weekday in seeking work’ the Respondent will be requesting that the Adjudication Officer reduces any award proportionately.

Discrimination Claim CA-00038749-003

Without prejudice to the preliminary objection set out above, the Respondent states as follows.

In asserting a claim of discrimination, the burden of proof is governed by Section 85A (1) of the Employment Equality Act 1998, provides as follows:

“Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”.

Section 85A requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting the she suffered discriminatory treatment on the basis of disability. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In DPP V Sheehan Determination EDA0416 (14th December 2004), the Labour Court stated:

‘what the complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred.”

A Complainant must prove the primary facts on which she relies in seeking to raise a presumption of unlawful discrimination. In the case of Southern Health Board v Mitchell [2001] 1 ELR 201, the Tribunal stated as follows:

A claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.

The Complainant has not particularised any fact whatsoever upon which he relies to establish a prima facie case of discrimination on the grounds of disability or at all. It is further submitted that the Complainant will not be able to establish or set out these primary facts as no such primary facts exist and that therefore no presumption arises. The complaint therefore must fail.

The Complainant received identical terms and conditions of employment to all other employees. The Complainant did not at any point throughout his employment with the Respondent raise any issues of alleged discrimination, despite having a robust grievance procedure and company Staff Handbook available to him at all times.

The Complainant has not identified any comparator with regard to the matter, moreover the Respondent can confirm that other staff members, who do not suffer from a disability, have in fact been dismissed from the employment of the Respondent when it was discovered that they had engaged in theft from the Company. Consequently there is not comparator available to the Complainant. The Complainant has in fact received preferable treatment in comparison to colleagues in a similar position. It is submitted therefore that the Complainants claim is not well founded and must fail.

Redundancy CA-00038749-004

The Complainant resigned his position and as such a redundancy payment does not arise. Moreover, if the Adjudication Officer were to find that the dismissal took place, which is denied, and if the Adjudication officer further found that said dismissal was unfair which is denied, the result would be that an unfair dismissal occurred. This would not entitle the Complainant to a payment pursuant to the Redundancy Payments Act, 1967.

The Complainant resigned his position arising out of the circumstances set out above, his position was not and is not redundant within the meaning of the section 7(2) of the Redundancy Payments Act, 1967 or at all. The Complainant has no right whatsoever to a redundancy payment, consequently therefore the Complaint is not well founded and must fail.

Minimum Notice CA-00038749-005

The Complainant resigned his position with immediate effect, therefore no entitlement to notice arises, therefore the Complaint is not well founded and must fail.

Agency Working CA-00038749-006

The Complainant is not an agency worker within the meaning of the act. Without prejudice to the foregoing, if the Complainant were an agency worker within the meaning of the act, his complaint should be directed to the relevant agency as his employer, as should all the other complaints which the Complainant has raised.

The Complaint which the Complainant is pursuing in this instance appears to be directed towards Kilcullen Supported Employment. It is submitted that this, and all the above complaints should be directed to that entity if the Complainant is in fact in their employment.

It is submitted that the Complaint is directed towards the wrong respondent, is without merit and must fail.

The first question to be answered is did the Complainant resign from employment or was he dismissed?

Unfair Dismissal CA-00038749-001

The Complainant contends that he was offered two options, resignation or dismissal. In his evidence the National Operations Manager stated that the two options offered to the Complainant were resignation or face a disciplinary investigation.

The option to ‘resign or be dismissed’ is sometimes extended by employers for varying motivations. This option should be avoided as a general rule, as a resignation in such circumstances is involuntary and provides the classic stuff of a constructive dismissal claim. Similarly, where an employee clearly resigns in a hasty fashion against the backdrop of investigation and disciplinary procedures reasonableness demands that the employer consider carefully whether his resignation should be set aside.(An employee v An employer ADJ 00003442, 8th March 2017, in which the Adjudication Officer held that a one line email of resignation was ‘obviously written in a very distressed state and should have been set aside’ on the grounds of reasonableness. Ref: Redmond on Dismissal Law, third edition, Bloomsbury, page 443 [19.24]

In the instant case the Complainant was faced with a situation in which he had to decide (on the spot) between resignation or dismissal or face a disciplinary investigation (dependent upon which evidence is more acceptable). This cannot be described as a reasonable situation.

In the 1984 case, Looney & Co Ltd v Looney (UD 843/1984) the EAT summarised as follows:

‘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 were in the employer’s position would have acted 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’

As the Adjudication Officer assigned to hear this complaint and make a decision on same my job is that of the EAT as outlined above.

Discrimination Claim CA-00038749-003

The Complainant, as per complaint form contends that he has been treated unlawfully due to his disability.

At the hearing of the complaint the Complainant offered no further evidence on his own behalf. The Respondent pointed to the duty of the Complainant under section 85A of the Act:

In asserting a claim of discrimination, the burden of proof is governed by Section 85A (1) of the Employment Equality Act 1998, provides as follows:

“Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”.

Section 85A requires the Complainant to establish, in the first instance, facts  upon which he can rely in asserting the he suffered discriminatory treatment on the basis of disability. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

Redundancy CA-00038749-004

This was not a redundancy situation.

Minimum Notice CA-00038749-005.

Representative for the Respondent has stated that the Complainant resigned his position with immediate effect, therefore no entitlement to notice arises. The Complainant did sign a letter of resignation.

Agency Worker -  CA-00038749-006

Complaint submitted under s.25 of the Protection of Employees (Temporary Agency Work) Act, 2012.

I note that whilst the Complainant was originally employed through an agency he had been a direct employee of the Respondent for several years prior to his dismissal.

Unfair Dismissal CA-00038749-001

In the instant case the Complainant was faced with a situation in which he had to decide (on the spot) between resignation or dismissal or face a disciplinary investigation (dependent upon which evidence is more acceptable). This cannot be described as a reasonable situation.

The Respondent’s actions were unreasonable. I have decided that the complaint as submitted under s.8 of the Unfair Dismissals Act, 1977 to be well founded. However, the following should be noted:

A blemish free record in the past, or long service, are unlikely to render a dismissal for dishonesty unfair, as it is regarded as a serios infraction. It may not be relevant in judging the employer’s decision that an employee has not personally gained from his behaviour or that there is no proof that an employee has personally gained from his behaviour or that there is no proof that an employee gained from the dishonesty. Equally it may not be the employer who suffers; it could be a customer or supplier which is affected by the employee’s dishonesty. Although trust must be regarded as integral to all employer / employee relationships, sometimes an employee is described as belonging to a ‘high trust’ category, as in Hevey v Dublin Port & Docks Board (UD 161/1978) where the claimant was dismissed for taking six tins of fruit. However, high trust should be expected from all employees: one cannot differentiate between degrees of trust.

The Respondent has pointed to Paul Dusa v Synergy UDD1911 the Labour Court while finding that the Appellant in that case had been unfairly dismissed as a result of the inadequacy of the procedures used to dismiss him, the court nevertheless reduced the Appellants award to nil given inter alia his contribution towards his own dismissal.

I have considered this complaint in some depth and whilst, due to the inadequacy of the Respondent’s process, I believe the complaint to be well founded I also believe that the complainant has contributed 100% to his own dismissal and make no award to the Complainant.

Discrimination Claim CA-00038749-003

The Complainant, as per complaint form contends that he has been treated unlawfully due to his disability.

At the hearing of the complaint the Complainant offered no further evidence on his own behalf. The Respondent pointed to the duty of the Complainant under section 85A of the Act. This complaint as submitted under section 77 of the Employment Equality Act, 1998 is not well founded.

Redundancy CA-00038749-004

This was not a redundancy situation; the Complainant’s position did not become redundant. The complaint as submitted under the Redundancy Payments Act, 1969 is not well founded.

Minimum Notice CA-00038749-005

I am unable to find in favour of the Complainant. The complaint is not well founded.

Agency Worker -  CA-00038749-006

Complaint submitted under s.25 of the Protection of Employees (Temporary Agency Work) Act, 2012.

This complaint is not well founded. The Complainant was not an agency worker.