Complainant

Respondent

Parties

Shaun  Maguire

Trim Home Heating Oil Limited  t/a King's Gala Kiltale

Representatives

Aoife Farrelly BL instructed by Liam Keane & Partners LLP

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00038595-001

08/07/2020

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

CA-00038595-002

08/07/2020

The Complainant began his employment as a Retail Assistant on 27 March 2017 and was paid an average weekly wage of €450, including overtime. His employment was summarily terminated during the course of a meeting on 23 June 2020 and was confirmed in writing the following day.  The Respondent stated at the outset that there was a failure to follow their own procedures but highlighted that the Complainant’s conduct during the meeting should be taken into account when deciding on an award.

The Complainant disputed that he displayed a poor attitude during the meeting of 23 June 2020 and alleged that the Respondent had decided to dismiss him prior to the beginning of the meeting. He also highlighted that he was given an opportunity to resign during the aforementioned meeting and that when he declined to do so, the Respondent chose to dismiss him.

The Respondent stated that the Company's primary business is a petrol station with a Gala shop. A new Store Manager was appointed on 11 November 2019, whose primary objective was to change how the store was run, increase margins and have greater employee engagement as the Respondent was struggling with poor employee relations. Having taken six months to bed in and to assess the situation, the Store Manager met with the management team and presented the changes that he felt were necessary. Once all were aligned on the proposed changes, it was deemed necessary to inform all employees of these and the management team set up 1:1 meetings with all staff members.

The Company’s Operations Manager, Store Manager and HR Manager met with all of the staff on a one to one basis on 23 June 2020. The purpose of this meeting was to discuss the new Store Manager’s position and the new responsibilities that would arise as a result of this as well as new roles and company updates. The HR Manager stated that she attended to ensure that the meeting was conducted fairly and highlighted that the meeting was convened solely to address changes that needed to happen in the business.

The Respondent stated that the purpose of the meeting was explained to the Complainant at the outset but that he demonstrated little or no interest in being there as was evident from his demeanour throughout. Specifically, he slouched in the chair, rolled his eyes to the ceiling and continually sighed and tutted. It was also stated that he became more belligerent as the meeting progressed and that he continued to raise his voice. As a result, the HR Manager asked him to leave the room so that everyone could compose themselves.

During the break, the HR Manager, the Operations Manager and the Store Manager agreed that if the Complainant’s behaviours continued, the termination of his employment would have to be considered. Given that the Complainant’s behaviour following the resumption of the meeting was even more aggressive, the Operations Manager informed him to leave the premises immediately as it was not safe to allow him to remain in the workplace. The termination of his employment was confirmed by email the following day, 24 June 2020.

The Respondent also agreed that an offer was made to the Complainant during the meeting to resign but that the Complainant refused to do so and stated that he would leave when he secured another job.

It was also acknowledged at the outset that the dismissal was procedurally unfair but was highlighted that the Complainant had contributed to his own dismissal.

CA-00038595-001: 

The Law

The Act at Section 1, in relevant part, defines dismissal as follows:

“dismissal”, in relation to an employee, means—

• (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,

Section 6 of the Act, in relevant part, makes provision as follows:

(1) 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.

(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,

(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.

FINDINGS

I note firstly that, in accordance with s.6 (7) above, I must consider the conduct of the Respondent in relation to the dismissal. In this regard, I find that the nature of the dismissal was particularly egregious given that the Complainant was dismissed without regard to any procedure whatsoever, which is at odds with s.6 (7) (b). Specifically, he was called into a meeting on 23 June 2020 to discuss changes in the workplace and was summarily dismissed because, according to the Respondent, he appeared to be disinterested and showed a poor attitude.

It is worth highlighting that prior to his summary dismissal that the Complainant had a clean disciplinary record and no issues had been raised with him in advance of the meeting of 23 June 2020.  While the Respondent stated in evidence that the new Store Manager had difficulties with the Complainant since he had started in the shop, no such issues were ever highlighted to him. When asked during the hearing why this did not happen, the Respondent’s HR Manager stated that she was “too busy”.  Moreover, when asked if any one of the management team had queried if there was anything wrong with the Complainant at the meeting of 23 June, given the poor attitude he allegedly displayed, the Respondent stated that no such question was asked. The Respondent also stated when questioned that no consideration was given to adjourning the meeting until another date.

Having heard the Respondent’s evidence, I consider it incomprehensible that an employer would effect a dismissal without regard to any procedure whatsoever, let alone a fair procedure, in the middle of a global pandemic and seek to mitigate their conduct by apportioning blame to the employee. Specifically, I find that the conduct of the Respondent was so egregious because, as well as failing to follow any procedure, it is evident that no regard was had for the Complainant as a human being and it was not surprising to read from their submission that there are many employee relations difficulties in the shop where the Complainant was employed.  

Given the absence of any procedures whatsoever in relation to his dismissal, I find that the Complainant was unfairly dismissed.

CA-00038595-001: 

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(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, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(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,

(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 financial loss referred to in that subsection was attributable to an act, 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,

(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 Acts, 1981 to 1993, 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 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 1973, or in relation to superannuation;

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

While I have given serious consideration to the re-instatement of the Complainant as a result of the Respondent’s conduct in relation to the dismissal, I noted both the Complainant’s assertion that the working relationship has irretrievably broken down and the fact that he has secured alternative employment elsewhere.  Accordingly, I have decided that re-instatement would not be in his best interests and that compensation is the most appropriate remedy.

Specifically, this amount is comprised in the first instance of a determination of the financial loss incurred by the Complainant between both the dates of termination and that of the hearing, having regard to s. 7 (2) (a), (b), (d), (e) and (f) of the Act outlined above. It is clear from reading these sections of the Act that I must have regard to both the conduct of the Respondent and that of the Complainant when considering calculation of the financial loss.

Given the egregious conduct of the Respondent, highlighted above, and the complete disregard for any procedure whatsoever as well as the fact that his dismissal was not something any reasonable employer would have contemplated as well as the Complainant’s clean disciplinary record, I have decided not to reduce his financial loss because of his alleged conduct during the aforementioned meeting.

In calculating this loss I must also have regard to the extent to which he mitigated the loss in accordance with s. 7 (2) ( c ) above and note that was unemployed for the period from 24 June 2020, the day after his dismissal, to 11 April 2021. In addition, I note that in the 9.5 months period between his dismissal and finding alternative work, evidence was only provided by the Complainant of applications for fewer than 10 roles. As has often been noted in case law, including in Sheehan v. Continental Administration Co. Ltd., UD 858/199, ‘time 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 that regard, the Complainant falls short of what is required.

I also note that the alternative role he did find was on a lower salary and I have taken account of that. In addition, I note that he was unemployed again between the period of 19 September 2021 to 12 October 2021 and have taken account of this. I am satisfied that the Complainant’s financial loss arising from the dismissal ceased on 12 October 2021 and that there was no loss beyond this date.

While I note from the schedule of losses provided to me after the hearing that his representative deducted the social welfare payments that the Complainant received after his dismissal, it is clear from s. 7 (2A) above that such payments must be disregarded for the purposes of calculating financial loss. I must also have regard to the accrued redundancy entitlements that the Complainant lost as a result of his dismissal in accordance with s.7 (3) above and have also taken account of these.

Bearing all of the above in mind, I find that the Respondent should pay the Complainant €12,120 in respect of the unfair dismissal. 

CA-00038595-002:

As the Complainant was unfairly dismissed and was not paid any notice, I find that this complaint is well founded and that he should be paid €900.

No procedures; unfair dismissal