Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Furniture Business

Representatives

  Complainant’s Mother  

  Human Resource Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00035460-001

26/03/2020

On 26 March 2020, the complainant submitted a complaint of Unfair Dismissal to the WRC. The case came for face to face hearing on 7 October 2020. Some final documents were required, and I received the last document on 23 October, 2020. The Respondent, who operates a Furniture business has denied the claim. A written submission to that end was submitted on 24 July ,2020.

The Complainant was represented by his Mother . The Respondent was represented by the Company , Human Resource Officer.

The duration of employment agreed at hearing spanned 10 October 2016 to 9 October 2019 and nett earnings were agreed as €376.00 for a 40-hour week.

The company representative outlined that the complainant was based in a named store where he worked as a Sales Assistant since October 2016. He also held responsibility for opening and closing this store at 18.00hrs which is home for a considerable amount of stock. This was a position of trust.

The complainant worked under the Supervision of Mr A, the Regional Manager and had day to day contact with Mr B, local Manager.

On Friday, September 13,2019, the complainant closed the store prematurely at 16.30hrs of his own volition. This development was conveyed to the respondent by a neighbouring business. The Respondent did not intervene at that time. However, when he was later asked if he had left early any of the days? He denied leaving early. The respondent was not pleased by this perceived                        “misrepresentation and a deliberately fraudulent act” and considered it a breach of trust.

The following Saturday, September 28, the complainant did not make an appearance at work. He had not engaged in the standard “time off “request form and the absence were classified as an unauthorised absence. The complainant later told the respondent that this day had been approved by Mr A. This was followed up and found to be unsupported and caused the respondent to view this as a second instance, where the complainant had deliberately misled the company.

The Management Team convened and discussed the occurrences and concluded that the complainant should be dismissed for Gross Misconduct.

The respondent convened a Dismissal hearing, where the complainant was afforded the option of having Mr B as a support person, to which he refused, stating that he was happy to attend alone.

The respondent set out the details of the incidents and the complainant was given the opportunity to respond. The complainant accepted that he had closed the store without authorisation.

The respondent presented a letter of dismissal, where the reason for dismissal was recorded as gross misconduct following the occurrences on September 13 and September 28. The respondent took steps to ensure the complainant understood the process before he left the work site.

 The Complainant was invited to appeal within 7 days.

The Respondent submitted that trust and confidence had eroded in the complainant’s case within a short time frame and this left no suitable option outside dismissal for gross misconduct as provided for in the company procedures. Notice was not required to be paid.

The Respondent denied refusing the complainant a reference and confirmed that a material reference was provided on November 11,2019 and followed by a phone reference.

Following questions from the complainant’s representative, Ms A, Human Resources Officer accepted that the 4.30pm closure amounted to a single incident but emphasised that a valuable trading 1.5 hour of business was lost on that day.

Ms A acknowledged that the complainant contended that he had taken September 28 with respondent approval. The time line for paying commission had followed the complainant’s dismissal and he was not eligible for inclusion for commission as a result.

Ms A submitted that she had presented the facts and acted in an Advisory capacity to the Management Team, who acted as the decision-making forum for the dismissal. There were no records of this decision, which was guided by the parameters of Gross Dismissal in the Company.

The Respondent was faced with the imperative around 6 aspects of Gross Misconduct as provided for in the company policy and prioritised the decision to dismiss over any alternative action, such as consideration of tenure or an action short of dismissal.

The complainant was provided with an opportunity to appeal to an Independent party but did not seek an appeal.

Evidence of Mr A, Regional Operations Manager.

Mr A acknowledged that access to break time was a stated issue by the complainant, but he was not a stand-alone worker as much as he had depicted in submissions to WRC. Mr A’s son had previously provided back up for the complainant. When the complainant closed the store in September 2019, Mr A’s son was at school and not available to the company.

There had been an issue surrounding an error in delivery regarding a Corner Unit during October 2018, for which the complainant had a €50.00 deduction applied to his commission. This account was later resolved and the €50.00 restored to the complainant.

In January 2019, the respondent had received a customer complaint regarding a Delivery and the complainant was invited to a Disciplinary hearing. The issue faded away.

He denied that he had received any contact from the complainant during the 13 September pre-mature closure. He had flagged the complainants unauthorised absence with his senior management.

Mr A had not specifically approved the complainant’s absence on 28 September. The store was closed until lunchtime until a replacement was sourced. Mr A had chased up the complainant by phone on the day, but there was no answer.

During cross examination, Mr A confirmed that the store was not a difficult store to manage and support was readily available.

Mr A submitted that the store was not maintained in an optimal clean condition and this matter had been flagged verbally with the complainant on several occasions.

Mr A confirmed that the complainant had not received a transcript of the earlier disciplinary process. There were no hard feelings arising from that episode.

Evidence of Mr B, Executive Sales

Mr B confirmed that breaks were provided and were normally “fluid “and dependent on customer flow. The complainant was known to avail of cigarette breaks.

Evidence of Mr C, Company Director

Mr C outlined that the store where the complainant worked was a quiet store, making 3 to 4 sales per day. Mr B covered breaks.

Mr C had not praised   the complainants work performance and the shop was untidy. This had been brought to the complainant’s attention much earlier and he had been given a targeted list of tasks by Mr B. The shop hosted an average of 15 customers per day.

A small dispute on workload had been resolved between the complainant and Mr B in July 2019, set working days and a cleaning roster were established.

Mr A had expressed his disappointment when the store was closed without authority and the respondent waited to find that full hours of attendance were logged.

The complainant was rostered to work without variation on September 28 and was not available by phone to discuss his absence on the day.

In considering the facts as presented by Ms A on the complainants’ transgressions, Mr C reaffirmed these amounted to a breach of trust. He went on to refer to a post dismissal Browser history review which yielded extracurricular activity outside of his anticipated core work commitment.

Mr C confirmed that the unauthorised departure from site and the unauthorised day off were challenging transgressions for the company. He confirmed that the respondent operated an Internet Policy.

The Management Team in considering the complainants dismissal had not invited the complainant to present his response. He had not lodged an appeal of the decision.

In conclusion, the respondent representative reaffirmed the reason for dismissal as Gross Misconduct on 6 grounds, emphasised the severity of the complainant’s actions on the business and the resultant breach of trust. The Complainant had not been denied a reference and had not availed of the pro-offered appeal. The shop had not been trading well by an annual comparative exercise between 2018 and 2019. The respondent had not hampered the complainant in finding new work.

The respondent undertook to provide phone records on request.

The complainant’s representative outlined that this was the complainant’s first job. He had spent 6 months on his own before a co worker joined him for 4 hours a day for a 12-month period. He was not provided with a contract of employment. He received 1% commission on sales.

The job involved sales and delivery in a named store. The complainant had an ongoing problem accessing breaks. Mr A had told him that his son would support the store for breaks.

The complainant was not provided with on the job training or participation in performance review.

The representative outlined that the complainant was wrongly accused of an error involving a corner unit during 2018. The complainant had denied the error but two days later, he received a letter titled “Disciplinary Procedure” regarding incorrect delivery. There was no evidence of an incorrect delivery and the complainant had €50 deducted from his commission.

The matter was addressed in January 2019 and the complainant received a letter rescinding the sanction. Shortly afterwards, Mr A became very aggressive towards him and fired him. Mr A apologised and everyone went back to work.

The representative went on to detail the day that the store closed early, September 13,2019. It was the complainant’s position that he had placed the respondent on notice that he had to close the shop as he had not had a break or anything to eat.

The representative submitted that the respondent was on full notice of the complainants approved day off on September 28,2019. The complainant had teased out the missed breaks with Mr A and had accepted a “day off in lieu” under the radar. He had confirmed this by email ….

This day prefaced the approved annual leave. On the complainant’s arrival back to work post leave, he was handed a letter which conveyed his dismissal.

The dismissal had a negative effect on the complainant as it stalled his career, leaving him without a reference or notice of dismissal and an enduring impact on his mental health.

He had found new work from November 2019 to January 2020 and from February 2020 to June 2020 at the rate of €10.10 per hour.

Evidence of the Complainant.

The Complainant submitted an extensive written account of the circumstances of his case. During the hearing, he submitted that he had worked alone after a co worker left. This troubled him as he was unable to have proper breaks as he was required to be attentive to the front door bell for customers.

He had struggled with aspects of the job in the absence of manual handling training and the non-replacement of 2 hrs of cleaning allocation.

He referred to the “Corner Unit “episode where commission was docked for his apparent non-adherence to a local protocol, early in 2019. He searched his emails and was certain that he had not been informed of the protocol. This caused him some angst as he did not want to be accused in the wrong.

A dispute evolved with Mr A, who had directed the matter towards a Disciplinary procedure, only to eventually change direction. However, during this exchange, Mr A fired him.

Mr A apologised and the complainant resumed work.

The Complainant expressed a disappointment that he was not provided with cover for breaks. In recalling September 13, 2019, he told the hearing that he had called Mr A seeking cover for break. Mr A said that he would send his son up, but this didn’t happen. He took the decision to close the shop, walked to town and bought food. He told the hearing that he did call Mr A on that evening but had not left a message. There was no policy on closing the shop

The Complainant confirmed that he had taken Saturday 28 as he thought it was agreed. There had been no calls from the company during that day. On his return from annual leave, he was fired without notice.

This resulted in his income being reduced to €100 per week in state supports compelling him to move home. He found new work in November 2019 but ran into difficulty when the respondent did not honour his request for a reference.

During cross examination, he agreed that there had been a cleaning component to his role. He had walked into town on September 13.

He confirmed that he had completed the holiday request form for holidays commencing on 28 September.

The Complainant confirmed that he had been offered an appeal to his dismissal.

He confirmed that he had suffered depression in June 2020.

The complainant outlined that he had not given any thought to seeking a transfer to a more supported store. The named store was near his home.

The complainant was aware of the staff handbook but had not utilised it.

In conclusion, the complainant’s representative emphasised that he had an exemplary record in his job. He was not afforded the opportunity to address any performance issues through the company’s performance review system.

There was no record of the earlier recourse to disciplinary procedure in February 2019. Neither was there a record of an earlier attempt to terminate the employment.

The complaint was truly shocked by his dismissal which he contended was disproportionate. He addressed his need to eat in the face of feeling unwell on September 13. He genuinely believed that he had approved leave on September 28.

The Complainant undertook to provide phone records and any records maintained from the earlier disciplinary procedure invoked.

This a claim for unfair dismissal on behalf of the complainant which has been strongly contested by the respondent. In reaching my decision, I have considered all written and oral presentations and the evidence adduced.

The law on Unfair Dismissal is set out in section 6(1) of the Unfair Dismissals Act, 1977.

Unfair dismissal.

6

6.— (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.

Section 6(4) (b) on which the respondent has relied permits an exception to this in the case where a respondent can establish that dismissal arose wholly or mainly from the conduct of the complainant.

Section 6(6) of the Act places a firm burden of proof on the respondent in that regard.

In addition, Section 6(7)(a) of the Act permits me to look at the reasonableness or otherwise of the conduct of the employer by act or omission.

At the outset, it is important for me to point out that gross misconduct is not defined specifically in the Act but Conduct as provided for in the Act, has been considered in a vast body of case law.

Ruffley V Board of Management St Anne’s School [2017] IESC 33, Bank of Ireland v Reilly [2015] IELJ 72, Bunyan V UDT [1982] ILRM 404

In chapter 16 of Redmond on Dismissal Law, Des Ryan, BL refers to the legal framework governing conduct-based dismissals.

The issue for the Tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal.

JVC Europe ltd v Panisi [2011] IEHC 279

Mr Ryan goes on to emphasise the part played by the employer’s honest belief in the case. In pointing to a UK Court of Appeal case of Adesokan and Sainsburys Supermarkets ltd [2017] ICR 500, he points to:

The focus is on the damage to the relationship between the parties . Dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence.

The seminal High Court case of Frizelle and New Ross Credit Union ltd [1997] IEHC provides a clear 5-point floor plan of what is expected in justification of an employer’s decision to terminate employment for misconduct.

1. The complaint must be a stand-alone bona fide complaint

2 It should be stated factually, clearly and fairly

3 The employee should be interviewed, and his version furnished to the decision maker without comment

4 The decision should be based on the balance of probability

5 the decision should be proportionate to the gravity of the complaint and of the gravity and effect of dismissal on the employee.

 I have considered both parties extensive submissions in the case and I have identified a high level of hurt and disappointment on both sides. In the run up to the hearing, the complainant submitted some documentation surrounding his deterioration in his mental health following dismissal. He expressly forbade  this documentation being shared with the respondent. The complainant’s representative referred to his altered mental health post dismissal, but it fair to state that the respondent has not been been placed on official notice of the documentation. I have had to rely on the evidence adduced by the complainant himself in that regard.

Both parties agreed that the complainant had not been provided with a contract of employment. This marked a significant missed opportunity to anchor what amounted to a first employment for the complainant. A contract and accompanying workplace policies are vital in steering a mutually beneficial work placement. I have established that the complainant was disadvantaged in that regard.

I have a clear understanding on the operation of the business and the importance of the named store in the respondent business. I have also noted the expressed trading difficulties.

The Respondent was firm in the defence of the decision to dismiss. Ms A told the hearing that she had presented the facts of both transgressions on 13 and 28 September which the Management Team concluded amounted to gross misconduct warranting dismissal which was communicated to the complainant on 9 October 2019.

I undertook to assess this development against the company submitted Disciplinary policy. The respondent operated an elaborate and constructive Disciplinary Policy which provided several opportunities for corrective action in the face of a problem in work performance. I also noted at hearing that the respondent operated an extensive performance management system. The complainant had not been enrolled in that system and no reason was given for that omission.

There is a positive obligation on the respondent to operate their own policies in good faith.

However, I was drawn to the fragmentation contained within the Gross Misconduct section of the policy. In the case of gross misconduct, it was open to the respondent to suspend, investigate and sanction an employee short of dismissal.

Right of Appeal

If a staff member is unsatisfied with the outcome of the disciplinary procedure at any stage they may appeal to the HR Department in writing within 7 days of the decision being reached.

Gross Misconduct

X reserves the right to abbreviate the above procedures in incidents of gross misconduct. In cases where gross misconduct is established, X may summarily dismiss a staff member without recourse to all the steps outlined in the following procedure. In such serious cases ….X…. may suspend a staff member with pay to facilitate investigation of the case. Following investigation of any matter, X……. may decide either to impose another form of discipline, such as suspension without pay and/or final written a warning.

Examples of what may be considered gross misconduct, for which an individual’s employment can be summarily terminated following a disciplinary hearing, are listed below. This list is not exhaustive.

I listened very carefully to the respondent as they explained their imperative to terminate employment through gross misconduct and their stated submission that procedures permitted this.

The respondent was not able to demonstrate through records on how Gross Misconduct was established. The letter of Dismissal did not catalogue the arrival at this pronouncement. At hearing, the respondent cited 6 instances of gross misconduct three of those were inappropriate as they applied to events elicited post dismissal and cannot be properly before me.

In Ikoro v Woodies DIY ltd UDD 1739, the Labour Court held that an investigation must be “comprehensive to the degree that the outcome could be assured to provide a basis for conclusions to be drawn on the balance of probabilities following the conduct of the respondents disciplinary process “

I could not establish that the Respondent ascertained the full facts before moving to dismissal as only one side was heard .The decision to dismiss took place on an ex parte basis as  both parties agreed that the complainant was on holidays  when his dismissal was decided .I found this to be contrary to natural justice and a flagrant breach of fair procedures .At the very minimum , an investigation ought to have been initiated .Abdullah V Tesco Plc. UD 1034/2014

I have considered the respondent defence that they understood that they held an executive authority to terminate employment in the best interest of their business. I accept that the complainant presented some challenges to the business and trust had fractured on both sides of the employment relationship. However, the respondent cannot be permitted to exercise an unfettered discretion to dismiss an employee outside fair procedure.

I found that the complainant was not met with a report of his alleged transgressions or more importantly afforded time to improve. Crucially, he was not told that his dismissal was under consideration. Instead, the complainant worked from September 14 to September 27 inclusive without a two way “look back “or review of the pre-mature closure of the store.

 Of course, fault lay on both sides on this aspect. However, the respondent ought to have led a face to face discussion on the perils faced by the business by the complainant’s actions. The complainant ought to have explained his actions. I note that the complainant did not forward his phone records as requested post hearing. I received the respondents records of “call outs “but not “call ins”.

It is not for me to decide on whether what the complainant did was right or wrong during his employment.

In this decision, I have accepted that he was dismissed and   have looked carefully at the circumstances surrounding dismissal, assessing whether the respondent, can reasonably rely on the defence contained in section 6(4) (b) of the Act and whether the decision can be found to rest within the “band of reasonableness “permitted?

The Complainant has directed a large part of his submission on the earlier discord surrounding the deduction of commission of €50.00. I have reviewed the documents which accompanied the intention to hold a disciplinary procedure and the eventual changing of direction. I note that this journey was accompanied by records and stands in conflict with the effecting of the instant decision to dismiss.

I can see that the respondent held a view that the parties had “buried the hatchet “and had returned the deduction to the complainant. I accept that the respondent did terminate the complainant’s employment and immediately rescinded this. This pointed to a deep fault line in the employment in early 2019 and while the respondent pressed on with operations , I found that the complainant had a much altered view of the respondent after this and did not reduce the event to a “ burial of the hatchet” I appreciate that he lost trust and focussed on being denied break periods as a centre point for the clear disconnect in the employment relationship .

I found that the respondent held a reasonable view that the complainant should have notified the business of his intention to engage in a premature shut down and carried a large element of disappointment.

The issue of breaks ought to have been formalised through the grievance procedure or if necessary to a third party as a statutory right as a shop worker. The resolution of this issue should not have been insurmountable in the hands of reasonable people.

I found that there was a clear ambiguity in the approval or otherwise in the “time in lieu” for Saturday 28, from my review of the documentation submitted, I could not be certain that approval could be presumed or denied from the email thread which ceased 10 days before the day was taken.

 I noted that replacement fell on the employee in the case of a Saturday day off and this had not been affected. In short, the complainant’s failure to appear to work, while chased up by Mr C and resulting in a loss of trading opportunity could hardly be classified as gross misconduct coming as it did in the wake of ambiguous email threads and a defined absence of an investigative process.

I also noted that the respondent did not engage in any proportionality assessment of the severity of the transgressions. I accept that the respondent may have mentioned the potential for appeal, but of extreme concern was its omission from the letter of dismissal, where the decision was recorded as “final”.

I found that the complainant carried a residual anger against the company who he blamed for his worsening health and mixed results in finding new work. He did not present evidence to the hearing to support that contention and the Labour Court has given us a helpful observation in that regard in Rehab Group V Annette Roberts UDD 2026, where they stress the requirement for “substantive medical evidence”.

I do not accept that the respondent was hesitant in providing a reference or impeding the complainant’s opportunity to access new work.

However, I find that the complainant had a part to play in his own demise. I have established that the respondent invited him to place the earlier discord and termination on the table for discussion, but this did not develop into dialogue at any stage after this. A direct engagement may have improved staff relations which I appreciate were frayed from February 2019 onwards.

I requested phone records from the complainant and these did not materialise. I have drawn inferences from their omission.

I have found some over lap in the circumstances of this case with a much earlier EAT case of Richard J Bunyan v United Dominion Trust Ireland ltd [1982] ILRM 404

 This case charted a slow erosion of trust and confidence between complainant and respondent which culminated in a minuted decision to dismiss the complainant at a Board meeting and prior to an issue in conflict being heard at a Rights Commission Hearing.

By majority, the EAT stressed the unilateral action surrounding the decision to dismiss and made the following insightful and incisive remark.

As stated we feel that compliance with the requirements of natural justice could have resulted in the decision to dismiss the claimant not being taken. Accordingly, we find that the denial of natural justice was fundamental and renders this dismissal unfair in the spirit and context of the Unfair Dismissals Act, 1977, and we so determine.

In the instant case I have found a complete lack of natural justice and fair procedures in both the decision taken to dismiss and the conveyance of same. I cannot accept a decision to dismiss by committee without the complainant being heard or permitted representation. I established that the letter of dismissal was drafted prior to Ms As meeting with the complainant on his return from annual leave .

The contract, albeit not available in print, commenced on consent of both parties and was mutually beneficial for several years before a fault line became pronounced in February 2019. The cessation of contract should have been enshrined in fair procedures. Instead, these were absent and the decision to dismiss was precipitous, unfair  and disproportionate.

I have found that the respondent cannot rely on the defence contained in Section 6(4) (b) of the Act.

The respondent has not proved substantial grounds for dismissal and the dismissal was so procedurally flawed as to be rendered unfair. However, I have found that the complainant did play a part in his demise.

The complainant was unfairly dismissed.

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.

I have found that the Complainant was unfairly dismissed.

Section 7(3) defines financial loss “as including any actual loss and any estimated prospective loss of income attributed to the dismissal.”

Its terms remuneration as allowances in the nature of pay and benefits in lieu of or in addition to pay.

The Complainant was employed by the respondent on a permanent basis. His new work was sessional and sporadic. He gave short evidence of mitigation, which was challenged by the respondent. He has suffered periods of illness and unavailability for work.

Taking everything into consideration, I make an award on compensation against the respondent of €8,000 to include actual and prospective financial loss, unpaid notice and unpaid bonus (already earned) on departure.

I would encourage the respondent to review their policy on Gross Misconduct.

Unfair Dismissal, Gross Misconduct.