Complainant

Respondent

Anonymised Parties

A Pest Control Technician

A Pest Control Service Provider

Representatives

Laurie Burke Hally Burke Solicitors

none 

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-00036308-001

22/05/2020

The Complainant commenced employment with the Respondent, a provider of Pest Control services,  as a Pest Control Technician, on 5 August 2017. His employment ended on 20 April 2020.  He was paid a gross weekly salary of €514.51 and worked 40 hours per week.  A complaint was received by the WRC on 22 May 2020.  A remote hearing took place on 15 March 2021.

The Respondent denies the Complainant was unfairly dismissed. The Respondent submits that the Complainant was dismissed because, contrary to his contract of employment, contrary to instruction and contrary to practice he used company materials for a ‘nixer’ and withheld monies rightfully belonging to the Respondent.  In essence, the actions of the Complainant, according to the Respondent, amounted to a breach of trust and faith.

The Respondent provided a detailed written submission.

The Respondent submits that the Respondent company is a micro-business without the elaboration or complexity of a multi employee enterprise. For the year to September 2019 to August 2020 the company made a modest, low four figure profit such is the competition in the market, the impact of the coronavirus and the natural size of the market.  The company places great importance on the honesty and integrity of its staff.

The Respondent submits unequivocally that the Complainant, without the prior written permission of the company (as required by his contract), withheld monies due to the business that legitimately should have been handed over.  The Respondent submits that it now seems apparent that the Respondent agrees that he held onto monies which should have been handed over to the Respondent company.

The Respondent submits that the Complainant has confessed to continually withholding legitimate income from the company for a prolonged period of time.

The Respondent also denies that the Complainant’s assertion that the approach he, the Complainant, took to so called “nixers” was prevalent in the company is entirely rejected by the Respondent.  On the contrary, the Respondent submits that such illegal and disreputable practices were never permitted or authorised as suggested by the Complainant; furthermore, he has produced no evidence to substantiate this claim.

The Respondent denies any suggestion that the company utilised a “cash-in-hand” culture.  The Respondent categorically rejects the notion that a carte blanche operated where staff could take any personal work they wished and pocket the proceeds. In fact, the only deviation from customer monies being handed in occurred if the work was being done for family or close friends and in any such instances prior approval in writing was required.

In the submission the Respondent refers to a letter of 20 April 2020 which was sent to the Complainant setting out the background to the dismissal. That letter states, in summary, that following an investigation the Respondent found that the Complainant carried out two jobs and retained the monies given to him for them.  The letter goes on to state that:

The Complainant, “retained valid service fee’s (sic) earned from legitimate customers of the company.” That the Complainant, “conducted private and personal business using the phone supplied to you by the company.” That the Complainant, “improperly and without authority used the company vehicle and materials in carrying out these 2 jobs.” That the Complainant, “carried out these jobs “on the side” for your own personal monetary gain.” That, “any additional work other than that of the company may only be done so with written permission.”

The letter concludes, “As the Managing Director of (name of Respondent company), having fully investigated, reviewed and considered all of the above I have no option other than to terminate the contract of (Complainant’s name) with immediate effect.  All monies due will be calculated and forwarded to his (the Complainant’s) bank account.”

The Respondent submits that carrying out additional work other than that of the company, without permission, was not allowed as per the contract of employment.  Nor was he entitled to use the company’s goods, chemicals, vehicle etc, to carry out private work.

In the submission the Respondent goes on to say that the company lost customers due to the Complainant’s actions.

The Respondent submits that there are no formal records of the events or attendant discussions.

In direct evidence at the hearing, the Managing Director of the Respondent company stated he did tell the Complainant that some non-company work was allowed but only for close relatives and friends and that he had to be informed in advance of such work being undertaken.  The witness also denied doing ‘nixers’ and stated that money that comes into the company, stays in the company.

In response to questions, the Respondent stated that the dismissal was based solely on the two incidents referred to in the letter of dismissal and that two weeks’ notice was paid to the Complainant.

In concluding, the Respondent submits that the issue of these ‘nixers’ was an avaricious solo run by the Complainant to line his own pockets without any regard to the costs accruing to the Respondent Company by his actions or its future well-being despite he being directly aware of its financial vulnerabilities from discussions he had had with the Managing Director that with him previously. The actions of the Respondent in dismissing the Complainant were proportionate to his actions and that if this is found to be an unfair dismissal, the Complainant’s substantial contribution to his own dismissal should be considered.

The Complainant provided a detailed written submission.

The Complainant submits that he was dismissed without any due process. He was not given the opportunity to discuss the matter. There was there a disciplinary hearing. The Complainant also submits that there was no basis for dismissing him as ‘nixers’ were allowed.

The Complainant submits that he was employed by the Respondent on or around 3 August 2017.  He was never provided with the full equipment required for his role and he provided and used his own personal pest control equipment.  From the commencement of his employment to April 2020 the Complainant received positive feedback and was never subject to any disciplinary procedure.

The Complainant submits that during his employment the Complainant engaged in ‘nixers’ that were permitted and authorised by his employer, the Respondent.  These ‘nixers’ were ‘cash-in-hand’ work and according to the Complainant were permitted and encouraged so long as employees were not abusing the privilege. 

The Complainant submits thee was a ‘cash culture’ in the company where employees were allowed hold onto cash received from clients and then submit the cash takings to the company approximately once a week.

On or around 20 April 2020, the Complainant reported for work at the house of the Managing Director of the Respondent Company.   While there the Managing Director demanded that the Complainant hand him back his company credit card and mobile phone and then summarily dismissed the Complainant.  The Respondent then handed the Complainant a letter stating that the Complainant was being summarily dismissed after a secret investigation carried out by the Managing Director, which had concluded that the Complainant had stolen monies from the company and had breached company policy by engaging in a ‘nixer’.  The Complainant was asked to leave immediately without being given an opportunity to get his personal belongings.

In direct evidence at the hearing, the Complainant stated that on 20 April 2020 (in the Respondent’s yard) he was called back by the Managing Director and asked for his keys, phone and was fired.  The Complainant said to the Managing Director that ‘nixers’ had always been allowed.  The Complainant was shocked at this turn of events and when offered €50 by the Respondent to get a taxi, he told him to keep his money.  The Complainant stated that he had done nothing wrong as he believed he had permission to do ‘nixers’.

In response to questions put to him in cross examination the Complainant stated that he was not aware that his contract excluded the use of company time and equipment for personal work. The Complainant did agree he had signed his contract. The Complainant also stated that there was a difference between using the company van and mobile phone for personal work and using company chemicals; when doing ‘nixers’ he used his own chemicals.  The Complainant said he usually did ‘nixers’ in the evening time or on public holidays.

A witness called by the Complainant stated that ‘nixers’ are common in the business and that the Complainant got chemicals from him for that purpose.

In response to a question, the Complainant stated that he did receive his notice payment.

He also stated that he had first applied for another job in May 2020 but had been unsuccessful.

The Complainant submits that he was summarily dismissed without being given an opportunity to challenge the allegations against him, in circumstances where there was no documented grievance or disciplinary procedure in place.

If the matter had been investigated properly, the Complainant submits that the Managing Director would have discovered that the Complainant did not use company chemicals or pest control spray but had used his own chemicals and equipment for the ‘nixer’ in question.

The Complainant submits that the Respondent did not have any documented grievance or disciplinary procedure in place and that contrary to the Respondent’s submission to the WRC, there is no record of any disciplinary action being taken against him during his employment.  The Complainant also points out the absence of any policies or procedures relating to disciplinary or grievance matters.

The Complainant submits that fair procedures were not followed, the Respondent had predetermined the Complainant’s guilt at the time of dismissal, the Complainant was summarily dismissed and not given any opportunity to respond or clear his name.  As such, the Complainant was unfairly dismissed.

S6(4)(a) of the Act states without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

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.”

With regard to the substantive matter there is conflicting evidence from the two parties on two issues.  Firstly, on the issue of ‘nixers’; the Complainant puts forward that ‘nixers’ were part and parcel of the job and were accepted as a way for employees to make a little more than their normal wages; the Respondent argues that although there was some tolerance for ‘nixers’, they were only allowed for close relatives and friends and then only allowed with prior authorisation.  The supporting evidence on this matter is thin on the ground from both parties.  Although the contract of employment is clear on the requirement for prior written permission to “carry out additional work other than that of the company”, it seems that custom and practice may have been somewhat less stringent.  The only supporting evidence, other than the clause in the contract of employment, was that offered by the witness who stated that there was a cultural acceptance of ‘nixers’ within the industry and that he had supplied the Complainant with the chemicals required for carrying out ‘nixers’; far from overwhelming evidence.

The second issue on which there is conflicting evidence relates to the money taken by the Complainant for doing the two jobs which were subject of the Managing Director’s ‘investigation’. The Respondent contends that the failure of the Complainant to hand in monies for the two ‘nixers’ proves the Complainant was pocketing company monies for himself.  The Complainant on the other hand puts forward that the handling of cash was lose and that he handed in all money belonging to the company on time as required.  Neither party had decent evidence to support their contention.  Whatever the truth in those two matters, I do believe the Respondent when he stated that he had lost trust in the Complainant and that is why he dismissed him.  In this case I find that the Respondent’s decision to dismiss was, within the range of reasonableness.

Moving to the procedural aspect of the dismissal the picture is much clearer.

S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) outlines the general principles of natural justice and fair procedures required in the workplace arena.  These principles include:

The details of any allegations or complaints are put to the employee concerned;

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

The employee concerned should also be made aware of the appeals process.

The principles of natural justice must be applied by the respondent in the policies and procedures it applies to the Complainant's employment and dismissal. 

In all cases of dismissal for conduct, an investigation by the employer is required.  The precise requirements of each investigation will be determined by the facts of the case, but the onus will be on the employer to show that it was "fair" in the sense of being open-mined and 'full' in the sense that no issue which might reasonably have a bearing on the decision was left unexplored. In this case the ‘investigation’, and I use that term loosely, was worth nought as the Complainant was never asked for this response to the ‘findings’. Indeed, as no disciplinary hearing took place, the Complainant had no opportunity to defend himself in any manner or means.  Until he was dismissed, the Complainant was unaware that an investigation had or was taking place.

As no disciplinary hearing took place, the Complainant could not avail of his right to representation.

As no disciplinary hearing took place, a fair and impartial determination of the issues concerned could not have taken place.

The Complainant was never advised of his right to appeal the decision to dismiss.

From the evidence adduced it is obvious that the principles of natural Justice were totally dispensed with in this case.  Consequently, the only finding that can be made is that this was an unfair dismissal within the meaning of the Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 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 complaint is upheld. Section 7 of the Act states: 

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

( 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, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

The preferred redress of both parties in this case is compensation.

Post hearing there was also an amount of debate and an exchange of correspondence regarding the efforts made or not made by the Complainant in mitigating his loss.

The Complainant stated that although he made attempts, starting in May 2020, to find employment after his dismissal, he has only just secured part-time work commencing two weeks after the date of the hearing. The Respondent pointed out that pest control was deemed an essential service and that work continued in the industry unabated during the period of Covid 19 restrictions.  I find the Complainant did attempt to find alternative employment but that the efforts made were not as diligent as they could have been.

I find this was an unfair dismissal.  In the circumstances, I order the Respondent to pay the Complainant compensation € 16,464.32 this to be paid within six weeks of the date below.

Natural justice, fair procedure, investigation, representation, right of reply