ADJUDICATION OFFICER DECISION
CORRECTION ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997 AND SECTION 88 OF THE EMPLOYMENT EQUALITY ACT 1998
This Order corrects the original Decision issued on 17/12/21 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00028731
Parties:
| Complainant | Respondent |
Parties | Christopher McDermott | NQA North Quay Associates |
Representatives |
| Ken Stafford Management Consultancy Services |
Complaint(s):
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-00038367-001 | 24/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00038367-002 | 24/06/2020 |
Date of Adjudication Hearing: 26/10/2021
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance withSection 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints 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 complaints.
Background:
The complainant commenced employment with the respondent in June 2006. He was employed as a General Operative. He worked 39 hours per week and was paid a fortnightly amount of €1,429.42. His employment with the respondent ended on 15 April 2020. A complaint was received by the WRC on 24 June 2020. There were two hearings for this case, the first took place on 25 August 2021 and the second on 26 October 2021. At the first hearing the complainant clarified that he was not making a claim for dismissal under the Employment Equality Act. |
CA-00038367-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977
Summary of Respondent’s Case:
The respondent provided a detailed written submission. The respondent submitted that the respondent was being represented by a HR Advisor to the company and that this advisor was also the person who carried out the disciplinary hearing and made the decision to dismiss the complainant. By way of background, the respondent submitted that the complainant worked as a stevedore for the respondent and that he had a history of erratic attendance and of failing to maintain proper contact with the company when absent. This was a particular problem in this employment, as the stevedores work in shift teams, loading and unloading ships. The respondent submits that what lead to his dismissal was primarily his communications with the respondent regarding a period of absence when he provided contradictory versions of events relating to Covid status. The respondent submits that the complainant went absent in late December 2019. He failed to maintain the proper contact regarding this absence. By late January 2020, because of this failure to communicate with the company, the General Manager (GM) concluded that the complainant had left his job. The GM wrote to the complainant on 28 January 2020, by email, and told him it appeared he had abandoned his employment. There then followed some exchanges between the complainant and the respondent’s HR Advisor and the complainant was allowed keep his job. However, the attendance problem persisted, and the GM wrote to the complainant again on 23 March 2020. The GM instructed the HR Advisor to commence disciplinary proceedings against the complainant. The respondent submits that between 23 March and 15 April 2020 the respondent communicated with the complainant on many occasions setting out matters in a very clear fashion and made strenuous attempts to get the complainant to respond to specific questions. The respondent asserts that in this exchange the complainant did not in any meaningful way address the key questions put to him. The exchanges referred to above included; On 31 March 2020, a letter to the complainant setting out the situation and emphasising the contradictions in his statements on Covid testing. On 7 April 2020, official notification of disciplinary action was issued, including reference to the complainant’s right to representation and the allegations against him. On 9 April 2020, a detailed set of questions was e-mailed to the complainant. Whilst there were multiple e-mail exchanges over the following days, the respondent submits the complainant did not, in any meaningful way, address these questions. The request to him to answer the questions was repeated, to no effect. The respondent submits that during this exchange the complainant repeatedly asked that a decision be reached, without him making any further attempts to address the questions. On 15 April 2020, the complainant was issued with a letter dismissing him. This letter also set out the reasons for his dismissal. There were some further exchanges after the notification of dismissal, the main one being that the complainant lodged an appeal against the decision. An appeal hearing was conducted by phone on 24 April 2020. The appeal upheld the decision to dismiss the complainant. In summary, the respondent submits that the complainant was very much the author of his own misfortune. The respondent submits that it is imperative that an employee maintains proper communications with their employer anytime when they are absent; the complainant failed to do so on many occasions. The respondent submits that it is also an essential requirement in employment that an employee is truthful in the information they provide to their employer; the respondent submits that it was impossible to reconcile the statements made by the complainant to the respondent. The respondent submits that the complainant was given every opportunity to respond to the allegations put to him. If anything, he was given more opportunity than would strictly been necessary. He had the benefit of an appeal by telephone but failed to convince the appeal person that he should have been other than dismissed. In direct evidence at the hearing, the HR Advisor to the respondent clarified that nothing was done, ‘face to face’, due to Covid restrictions; that no disciplinary hearing had taken place as “all was done by email” and the respondent had tried to get all the answers from the complainant by email. The respondent stated that the complainant had insisted he be given a decision and that it was the complainant’s circumstances that prevented a hearing taking place. The respondent was of the view that any deficit in the initial process had been negated by the appeal process. The respondent was of the view that the complainant had been given plenty of time and many opportunities to defend himself but did not do so. The respondent also made it clear that the dismissal was due to the contradictory messages received from the complainant which undermined management’s belief and confidence in the complainant. The respondent was particularly worried about the Covid virus being brought into the workplace and getting contradictory responses from the complainant as to his status vis a vis Covid meant no chances could be taken to bring him back while the situation was unclear. |
Summary of Complainant’s Case:
In his Complaint Form, the complainant submitted that he was unwell on 14 March 2020 and he was listed to undergo a Covid 19 test. He contacted the respondent and awaited the test. However, the criteria around Covid 19 testing changed and so he could go back to work. In March and April 2020, he was contacted by email several times by the respondent’s HR Advisor, regarding his absences from work, allegations regarding the misuse of a fire extinguisher and queries about the Covid testing. The complainant was subsequently issued with a Dismissal Letter by the HR Advisor, which he appealed but the appealed was not successful. The complainant submits that he contacted the respondent several times during the March and April period. On 14 March 2020, he sent a text message letting the respondent know that the family member was still unwell. On 18 March 2020, he texted the respondent to he would not be in for work as he was unwell and had been told to self-isolate. On 26 March 2020, he received a Covid test cancellation as the criteria for testing had changed. He then contacted the respondent to inform them that he was fit to return to work as his next rostered day was 2 April 2020. The complainant submits that he was dismissed as he used the wrong wording; this was caused because he is dyslexic. The complainant appealed the decision to dismiss him, but the appeal was unsuccessful. In a submission to the WRC, the complainant submitted that the respondent sent him an email fourteen times and he felt like this was done to frustrate him and confuse him on account of his dyslexia. Sending that many emails was not any help, it was unnecessary and quite demeaning. He submitted that a phone call under the circumstances would have been of a more positive and helpful response. In answer to questions at the hearing, the complainant stated that he uses “Speaking Text” when sending text messages on his phone and this can lead to messages getting “messed up”. He stated that management were well aware that he needed help in writing. |
Findings and Conclusions:
In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) 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. (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.” I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted. As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment 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 - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.” In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (In Re: Haughey [1971] IR 217). In weighing up the substantive issues leading to the dismissal and the fairness of the procedures adopted, the correct approach is to consider both together as per Iceland Frozen Foods -v- Jones (1983) 1 ICR 17. Applying the aforesaid legal principles and statutory provisions to the facts adduced, I find as follows: Substantive Issue I find that in the circumstances it was unreasonable of the respondent to dismiss the complainant. It is clear the respondent, through the HR Advisor, made several attempts to enter a ‘dialogue’ with the complainant and that efforts were made to find out exactly what was going on in relation to the complainant’s Covid status in emails sent in March and April 2020. However, the respondent became frustrated by the complainant’s responses. Notwithstanding the fact that some of the complainant’s responses were, if not contradictory, certainly confusing and it is obvious from the evidence given and the documents provided that the respondent was running out of patience with the complainant’s communications while absent, such frustration is not justification enough to dismiss an employee. More is expected from an employer. The complainant did mention in his responses to the respondent that he was dyslexic and would appreciate a phone call to discuss matters. The respondent should have taken cognisance of this and made greater efforts to contact the complainant and talk to him before deciding to dismiss him. Although it is understandable that the respondent became frustrated with the complainant, especially at that time when Covid restrictions were kicking in and we all were unsure of the future, I find this dismissal was outside the range of reasonableness required of an employer. Procedural Issues I find the procedure utilised by the respondent in this case falls well below that expected of an employer. On 7 April 2020, the complainant was written to by respondent. The letter stated that an investigation had been carried out by the GM and, “Because senior management and Directors are heavily engaged in the current Covid-19 operational issues in NQA, they have asked me to conduct the disciplinary hearing.” The HR Advisor stated in the letter that the hearing would be held remotely, and he would “set out a detailed list of points to be put to you and will give you a number of days to respond.” The complainant was also reminded of his right to representation at the disciplinary hearing. However, no disciplinary hearing ever took place. On 15 April 2020, the respondent wrote to the complainant dismissing him from his employment. In this letter the respondent, outlined the reasons he had decided to dismiss the complainant. He prefaced his decision with the following words: “I must point out that you have refused to answer the set of questions I put to you. I made repeated efforts to get you to answer, and I emphasised that it was not in your best interests to refuse to answer. I gave you from 9TH April to today, 15th, to provide answers, but you emphatically refused to do so. This means I must take the allegations as proven unless your earlier communications allowed me to do otherwise.” The respondent stated that he did not lift the phone as he believed everything had to be in writing. Notwithstanding the difficulties created by the Covid Pandemic, the need for a hearing, face to face or even remotely, that allows for dialogue between the parties remains; it is a fundamental principle of natural justice and cannot be cast aside for expediency. Putting questions in writing and basing a decision to dismiss on the responses or lack thereof is not acceptable. An employer is obliged to go to great lengths to ensure a hearing takes place that gives the employee the opportunity to respond to the allegations made against them; patience may be required. There was no hearing in this case, despite the complainant making it clear he would have appreciated a phone call, which at the least may have crystallised the situation for him. I note the subsequent appeal of his dismissal took place over the phone. I refer to LCR UDD2137, in which the Court made it clear that before a person is judged they have a right to be heard – this right being fundamental. Summary On both the substantive issues and procedural fairness I find this dismissal to be unfair. The complainant’s preferred redress was reinstatement, the respondent’s was compensation. In the circumstances where there has been a breakdown in the relationship between the parties, reinstatement is not appropriate. I believe the award of a compensation is appropriate. Mitigation In deciding on the amount of compensation that should be awarded to the complainant I must consider the efforts made by the complainant to find work after his dismissal. At the hearing the complainant stated that he has not worked since he was dismissed, though at the time of hearing he was due to start an Intreo Skills Course. He stated he had emailed his CV to about 20 companies, but he had not been interviewed for any jobs. Following the hearing the complainant provided some documentary evidence to support his claim that he had made genuine efforts to find work. It is well established in cases of unfair dismissal that a worker has a duty to mitigate their loss by taking diligent steps to secure suitable alternative employment. In the EAT decision, Sheehan v Continental Administration Co Ltd [UD858/1999] the EAT held as follows: “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 profitable employed in seeking to mitigate his loss”. From the evidence adduced I do not believe the complainant was as diligent in his efforts to secure work as he could have been. Nevertheless, he is entitled to compensation and I award him one year’s salary which I believe just and equitable in the circumstances.
|
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.
The complainant was unfairly dismissed. I award him €37,180. |
CA-00038367-002 Complaint under Section 77 of the Employment equality Act, 1998
Summary of Complainant’s Case
The complainant stated that he believed he had been discriminated against on the disability ground as the respondent had made no reasonable accommodation in relation to his dyslexia. He stated he had been victimised due to his disability. He said he found the multiple emails sent to him in March and April 2020 by the respondent was demoralising. The complainant stated that the respondent was aware of his dyslexia as they had sent him to a doctor in October 2019 to investigate communications difficulties he was experiencing at work. The complainant stated that the doctor was “confused” when he went to see him as he had not been given any explanation from the respondent regarding the complainant’s difficulties. The complainant also stated that the respondent was aware of his dyslexia as he always had to get help when filling out paperwork, all the supervisors knew according to the complainant. |
Summary of Respondent’s Case
The respondent stated that the complainant had not produced any evidence to support the assertion that he was dyslexic and that if he did have dyslexia the respondent was never aware he had. |
Findings and Conclusions:
The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim. I have examined whether the complainant has established a prima facie case of discrimination. The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It continued: “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”. In order to determine whether the complainant has established a prima facie case a three-tier test is employed: First, the complainant must establish that he is covered by the relevant discriminatory ground. Second, he must establish that the specific treatment alleged has actually occurred. Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground. In this instant case, no evidence was adduced by the complainant to support his assertion that he is covered by the disability ground, he therefore fails on the first tier. This being the case there is no point speculating on tiers two and three. I find that the complainant has not established a prima facie case and his complaint therefore cannot succeed. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The complainant was not discriminated against. The complainant was not victimised. |
Dated: 17/12/2021
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Face to face hearing, reasonableness, fair procedures. |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028731
Parties:
| Complainant | Respondent |
Parties | Christopher McDermott | NQA North Quay Associates |
Representatives |
| Ken Stafford Management Consultancy Services |
Complaint(s):
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-00038367-001 | 24/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00038367-002 | 24/06/2020 |
Date of Adjudication Hearing: 26/10/2021
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints 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 complaints.
Background:
The complainant commenced employment with the respondent in June 2006. He was employed as a General Operative. He worked 39 hours per week and was paid a fortnightly amount of €1,429.42. His employment with the respondent ended on 15 April 2020. A complaint was received by the WRC on 24 June 2020. There were two hearings for this case, the first took place on 25 August 2021 and the second on 26 October 2021. At the first hearing the complainant clarified that he was not making a claim for dismissal under the Employment Equality Act. |
CA-00038367-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977
Summary of Respondent’s Case:
The respondent provided a detailed written submission. The respondent submitted that the respondent was being represented by a HR Advisor to the company and that this advisor was also the person who carried out the disciplinary hearing and made the decision to dismiss the complainant. By way of background, the respondent submitted that the complainant worked as a stevedore for the respondent and that he had a history of erratic attendance and of failing to maintain proper contact with the company when absent. This was a particular problem in this employment, as the stevedores work in shift teams, loading and unloading ships. The respondent submits that what lead to his dismissal was primarily his communications with the respondent regarding a period of absence when he provided contradictory versions of events relating to Covid status. The respondent submits that the complainant went absent in late December 2019. He failed to maintain the proper contact regarding this absence. By late January 2020, because of this failure to communicate with the company, the General Manager (GM) concluded that the complainant had left his job. The GM wrote to the complainant on 28 January 2020, by email, and told him it appeared he had abandoned his employment. There then followed some exchanges between the complainant and the respondent’s HR Advisor and the complainant was allowed keep his job. However, the attendance problem persisted, and the GM wrote to the complainant again on 23 March 2020. The GM instructed the HR Advisor to commence disciplinary proceedings against the complainant. The respondent submits that between 23 March and 15 April 2020 the respondent communicated with the complainant on many occasions setting out matters in a very clear fashion and made strenuous attempts to get the complainant to respond to specific questions. The respondent asserts that in this exchange the complainant did not in any meaningful way address the key questions put to him. The exchanges referred to above included; On 31 March 2020, a letter to the complainant setting out the situation and emphasising the contradictions in his statements on Covid testing. On 7 April 2020, official notification of disciplinary action was issued, including reference to the complainant’s right to representation and the allegations against him. On 9 April 2020, a detailed set of questions was e-mailed to the complainant. Whilst there were multiple e-mail exchanges over the following days, the respondent submits the complainant did not, in any meaningful way, address these questions. The request to him to answer the questions was repeated, to no effect. The respondent submits that during this exchange the complainant repeatedly asked that a decision be reached, without him making any further attempts to address the questions. On 15 April 2020, the complainant was issued with a letter dismissing him. This letter also set out the reasons for his dismissal. There were some further exchanges after the notification of dismissal, the main one being that the complainant lodged an appeal against the decision. An appeal hearing was conducted by phone on 24 April 2020. The appeal upheld the decision to dismiss the complainant. In summary, the respondent submits that the complainant was very much the author of his own misfortune. The respondent submits that it is imperative that an employee maintains proper communications with their employer anytime when they are absent; the complainant failed to do so on many occasions. The respondent submits that it is also an essential requirement in employment that an employee is truthful in the information they provide to their employer; the respondent submits that it was impossible to reconcile the statements made by the complainant to the respondent. The respondent submits that the complainant was given every opportunity to respond to the allegations put to him. If anything, he was given more opportunity than would strictly been necessary. He had the benefit of an appeal by telephone but failed to convince the appeal person that he should have been other than dismissed. In direct evidence at the hearing, the HR Advisor to the respondent clarified that nothing was done, ‘face to face’, due to Covid restrictions; that no disciplinary hearing had taken place as “all was done by email” and the respondent had tried to get all the answers from the complainant by email. The respondent stated that the complainant had insisted he be given a decision and that it was the complainant’s circumstances that prevented a hearing taking place. The respondent was of the view that any deficit in the initial process had been negated by the appeal process. The respondent was of the view that the complainant had been given plenty of time and many opportunities to defend himself but did not do so. The respondent also made it clear that the dismissal was due to the contradictory messages received from the complainant which undermined management’s belief and confidence in the complainant. The respondent was particularly worried about the Covid virus being brought into the workplace and getting contradictory responses from the complainant as to his status vis a vis Covid meant no chances could be taken to bring him back while the situation was unclear. |
Summary of Complainant’s Case:
In his Complaint Form, the complainant submitted that he was unwell on 14 March 2020 and he was listed to undergo a Covid 19 test. He contacted the respondent and awaited the test. However, the criteria around Covid 19 testing changed and so he could go back to work. In March and April 2020, he was contacted by email several times by the respondent’s HR Advisor, regarding his absences from work, allegations regarding the misuse of a fire extinguisher and queries about the Covid testing. The complainant was subsequently issued with a Dismissal Letter by the HR Advisor, which he appealed but the appealed was not successful. The complainant submits that he contacted the respondent several times during the March and April period. On 14 March 2020, he sent a text message letting the respondent know that the family member was still unwell. On 18 March 2020, he texted the respondent to he would not be in for work as he was unwell and had been told to self-isolate. On 26 March 2020, he received a Covid test cancellation as the criteria for testing had changed. He then contacted the respondent to inform them that he was fit to return to work as his next rostered day was 2 April 2020. The complainant submits that he was dismissed as he used the wrong wording; this was caused because he is dyslexic. The complainant appealed the decision to dismiss him, but the appeal was unsuccessful. In a submission to the WRC, the complainant submitted that the respondent sent him an email fourteen times and he felt like this was done to frustrate him and confuse him on account of his dyslexia. Sending that many emails was not any help, it was unnecessary and quite demeaning. He submitted that a phone call under the circumstances would have been of a more positive and helpful response. In answer to questions at the hearing, the complainant stated that he uses “Speaking Text” when sending text messages on his phone and this can lead to messages getting “messed up”. He stated that management were well aware that he needed help in writing. |
Findings and Conclusions:
In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) 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. (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.” I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted. As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment 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 - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.” In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (In Re: Haughey [1971] IR 217). In weighing up the substantive issues leading to the dismissal and the fairness of the procedures adopted, the correct approach is to consider both together as per Iceland Frozen Foods -v- Jones (1983) 1 ICR 17. Applying the aforesaid legal principles and statutory provisions to the facts adduced, I find as follows: Substantive Issue I find that in the circumstances it was unreasonable of the respondent to dismiss the complainant. It is clear the respondent, through the HR Advisor, made several attempts to enter a ‘dialogue’ with the complainant and that efforts were made to find out exactly what was going on in relation to the complainant’s Covid status in emails sent in March and April 2020. However, the respondent became frustrated by the complainant’s responses. Notwithstanding the fact that some of the complainant’s responses were, if not contradictory, certainly confusing and it is obvious from the evidence given and the documents provided that the respondent was running out of patience with the complainant’s communications while absent, such frustration is not justification enough to dismiss an employee. More is expected from an employer. The complainant did mention in his responses to the respondent that he was dyslexic and would appreciate a phone call to discuss matters. The respondent should have taken cognisance of this and made greater efforts to contact the complainant and talk to him before deciding to dismiss him. Although it is understandable that the respondent became frustrated with the complainant, especially at that time when Covid restrictions were kicking in and we all were unsure of the future, I find this dismissal was outside the range of reasonableness required of an employer. Procedural Issues I find the procedure utilised by the respondent in this case falls well below that expected of an employer. On 7 April 2020, the complainant was written to by respondent. The letter stated that an investigation had been carried out by the GM and, “Because senior management and Directors are heavily engaged in the current Covid-19 operational issues in NQA, they have asked me to conduct the disciplinary hearing.” The HR Advisor stated in the letter that the hearing would be held remotely, and he would “set out a detailed list of points to be put to you and will give you a number of days to respond.” The complainant was also reminded of his right to representation at the disciplinary hearing. However, no disciplinary hearing ever took place. On 15 April 2020, the respondent wrote to the complainant dismissing him from his employment. In this letter the respondent, outlined the reasons he had decided to dismiss the complainant. He prefaced his decision with the following words: “I must point out that you have refused to answer the set of questions I put to you. I made repeated efforts to get you to answer, and I emphasised that it was not in your best interests to refuse to answer. I gave you from 9TH April to today, 15th, to provide answers, but you emphatically refused to do so. This means I must take the allegations as proven unless your earlier communications allowed me to do otherwise.” The respondent stated that he did not lift the phone as he believed everything had to be in writing. Notwithstanding the difficulties created by the Covid Pandemic, the need for a hearing, face to face or even remotely, that allows for dialogue between the parties remains; it is a fundamental principle of natural justice and cannot be cast aside for expediency. Putting questions in writing and basing a decision to dismiss on the responses or lack thereof is not acceptable. An employer is obliged to go to great lengths to ensure a hearing takes place that gives the employee the opportunity to respond to the allegations made against them; patience may be required. There was no hearing in this case, despite the complainant making it clear he would have appreciated a phone call, which at the least may have crystallised the situation for him. I note the subsequent appeal of his dismissal took place over the phone. I refer to LCR UDD2137, in which the Court made it clear that before a person is judged they have a right to be heard – this right being fundamental. Summary On both the substantive issues and procedural fairness I find this dismissal to be unfair. The complainant’s preferred redress was reinstatement, the respondent’s was compensation. In the circumstances where there has been a breakdown in the relationship between the parties, reinstatement is not appropriate. I believe the award of a compensation is appropriate. Mitigation In deciding on the amount of compensation that should be awarded to the complainant I must consider the efforts made by the complainant to find work after his dismissal. At the hearing the complainant stated that he has not worked since he was dismissed, though at the time of hearing he was due to start an Intreo Skills Course. He stated he had emailed his CV to about 20 companies, but he had not been interviewed for any jobs. Following the hearing the complainant provided some documentary evidence to support his claim that he had made genuine efforts to find work. It is well established in cases of unfair dismissal that a worker has a duty to mitigate their loss by taking diligent steps to secure suitable alternative employment. In the EAT decision, Sheehan v Continental Administration Co Ltd [UD858/1999] the EAT held as follows: “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 profitable employed in seeking to mitigate his loss”. From the evidence adduced I do not believe the complainant was as diligent in his efforts to secure work as he could have been. Nevertheless, he is entitled to compensation and I award him one year’s salary which I believe just and equitable in the circumstances.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complainant was unfairly dismissed. I award him €37,180. |
CA-00038367-002 Complaint under Section 77 of the Employment equality Act, 1998
Summary of Complainant’s Case
The complainant stated that he believed he had been discriminated against on the disability ground as the respondent had made no reasonable accommodation in relation to his dyslexia. He stated he had been victimised due to his disability. He said he found the multiple emails sent to him in March and April 2020 by the respondent was demoralising. The complainant stated that the respondent was aware of his dyslexia as they had sent him to a doctor in October 2019 to investigate communications difficulties he was experiencing at work. The complainant stated that the doctor was “confused” when he went to see him as he had not been given any explanation from the respondent regarding the complainant’s difficulties. The complainant also stated that the respondent was aware of his dyslexia as he always had to get help when filling out paperwork, all the supervisors knew according to the complainant. |
Summary of Respondent’s Case
The respondent stated that the complainant had not produced any evidence to support the assertion that he was dyslexic and that if he did have dyslexia the respondent was never aware he had. |
Findings and Conclusions:
The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim. I have examined whether the complainant has established a prima facie case of discrimination. The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It continued: “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”. In order to determine whether the complainant has established a prima facie case a three-tier test is employed: First, the complainant must establish that he is covered by the relevant discriminatory ground. Second, he must establish that the specific treatment alleged has actually occurred. Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground. In this instant case, no evidence was adduced by the complainant to support his assertion that he is covered by the disability ground, he therefore fails on the first tier. This being the case there is no point speculating on tiers two and three. I find that the complainant has not established a prima facie case and his complaint therefore cannot succeed. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The complainant was not discriminated against. The complainant was not victimised. |
Dated:
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Face to face hearing, reasonableness, fair procedures. |