ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028486
Parties:
| Complainant | Respondent |
Anonymised Parties | Driver | Bus Company |
Representatives | Conor Myles, Terence F. Casey & Company | Conor O’Toole, Dawson O’Toole Solicitors |
Complaints:
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-00035262-001 | 16/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00035262-002 | 16/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00035262-003 | 16/03/2020 |
Date of Adjudication Hearing: 01/12/2020 and 09/02/2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the UnfairDismissals Acts, 1977 – 2015 and Section 6 of the Payment of Wages Act 1991and Section 27 of the Organisation of Working Time Act 1997, 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 was employed as a Driver from 17th February 2016 to 27th November 2019. He was paid €550 per week. His complaints are that he was unfairly dismissed, that he was owed wages for unpaid extra time he was required to work each day and that he was due payment in lieu of 5 days annual leave accrued and not taken at the time of the cessation of his employment. |
Summary of Respondent’s Case:
Unfair Dismissal Claim
The Respondent submits that the Complainant was dismissed following a heated altercation with his manager, Manager A during which the Complainant threatened the manager with a syringe in which he stated there was “HIV and it’s for you”. The Respondent outlined the summary of events as follows:
There was a disciplinary meeting held on 14th November 2019 regarding another employee, at which the Complainant attended as support person for the other employee. Present at the meeting were the Complainant, the other employee and two managers including Manager A. At the end of the meeting an incident took place where the Complainant put on a latex glove, held up a syringe and threatened Manager A. A disciplinary meeting took place on 19th November 2019. Further disciplinary hearings were arranged and rearranged on three separate occasions, 21st November 26th November and 27th November 2019. The Complainant did not attend and provided various reasons for his nonattendance at the meetings, including that he was engaged in training for a voluntary organisation and that he was going on a trip with his wife. The Company decided that it had given the Complainant enough opportunities to respond to the allegations and on 27th November 2019, a letter of dismissal was issued to him. The reason cited for the dismissal was gross misconduct dangerous behaviour, fighting or physical assault. The Complainant was given a right of appeal. An appeal hearing was held on 17th December 2019. The decision of the appeals person was issued on 20th December 2019, which confirmed the dismissal. The Complainant was given a final appeal with the Managing Director, who having considered the matter confirmed the dismissal. It is argued that in the circumstances where the Complainant behaved in a threatening manner to his manager and he was given due process, the decision to dismiss was fair.
Payment of Wages claim
In relation to the claim by the Complainant that he was required to attend early and leave later than the period for which he was employed, the Respondent submits that he worked an average of 5 shifts i.e., 4.85 days per week. For the purpose of this exercise, it is assumed that he worked an average of 5 days per week. Therefore, his alleged loss under the Payment of Wages Act 1991 is 1 hour per day which is 5 hours per week. The Bus company does not accept that he had worked an extra 1 hour per day. His checks before and after driving took 15 minutes each and not 30 minutes each and formed part of his duties per trip so his alleged loss is in fact 2.5 hours per week.
It is submitted that the complainant’s complaint does not constitute an alleged deduction from the wages of an employee pursuant to Section 5 of the Payment of Wages Act 1991. The complainant has been paid in accordance with his Contract of Employment the terms of which were discussed at the time of his job interview, induction and the signing of his contract and agreed by him. His rate of pay is the per round trip payment stated in his Contract of Employment and that payment includes his 15 minutes of pre- and post-trip duties of which he was advised during his interview, induction and signing of his contract.
Annual Leave claim
His final payslip for week 49 shows that the Complainant received payment in lieu of any outstanding annual leave.
It is respectfully submitted that his complaints should fail.
Summary of Complainant’s Case: |
The Complainant denies the allegation that he threatened the manager with a syringe. He contends that what he had in his hand was a USB key. He had a number of complaints which he wanted to put to Manager A, but he was denied the right to do so. He stated that Manager A was extremely aggressive towards him and that while he did shout at the manager, it was not in a threatening way. The Complainant had a number of issues with management’s account of the incident. He did not agree that he went inside his car, but that he had gone to his car. He himself went to the Gardai about the matter and he stated that he was the victim in the situation, not Manager A. He stated that Manager A just would not listen. He stated that he put on a latex glove, as a force of habit. It is argued that the disciplinary process was unfair as the Complainant did not get the opportunity to question witnesses.
The complaint regarding payment of wages relate to the non-payment of wages for one hour each day when the Complainant was obliged to attend work to check vehicles.
The complaint regarding annual leave is that 5 days annual leave remained outstanding on cessation of his employment.
Findings and Conclusions:
CA-00035262-001 - Unfair Dismissals Act 1977 The Complainant was dismissed on the grounds of gross misconduct following an incident in the workplace where he was alleged to have threatened the manager with a blood-filled syringe. In deciding if the dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant, but rather consider whether the Respondent acted reasonably in the matter of the dismissal. The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that “It is not for the Tribunal to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did..to do so would substitute our mind and decision for that of the employer…our responsibility is to consider against the facts what a reasonable employer would have done in the same position..” In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct: “In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”. BHS v Burchall [1978] IRLR 379 is one of the key decisions in Unfair Dismissal cases when considering a dismissal arising from misconduct. The test as outlined in that decision was threefold: 1. Did the employer reasonably believe the employee was guilty of misconduct? 2. Had the employer reasonable grounds on which to base that belief? 3. Did the employer arrive at a decision after conducting a reasonable investigation? In that case, the Employment Appeals Tribunal determined that where misconduct is alleged, an employer has to genuinely believe that the employee is guilty, and has to have reasonable grounds for that belief, which must have been reached following a reasonable investigation. The employer does not have to prove guilt to a criminal standard and does not have to adopt a procedure comparable to a criminal investigation. Further it was not the role of the Tribunal to consider whether the employee was actually guilty of the alleged misconduct when deciding if the dismissal was fair. In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated: “The question. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”. In this instant case, I base my findings and conclusions on three key questions (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation? (2) Was there a fair investigation? and (3) was the penalty proportionate? I note and accept the evidence of Manager A in this case where he stated that he was 100% certain that he saw a barrel, syringe and plunger in the Complainant’s hand. I note that he reported the matter to the Gardai and that they visited the site the following day. I find that the Respondent had a genuine belief that the Complainant had behaved in a manner that could be categorised as gross misconduct. The Complainant was advised of the nature of the allegations against him and was afforded the right of representation, the right to reply and the right of appeal. I find that the Respondent followed fair investigation and disciplinary procedures. The penalty in this case could not be deemed to be disproportionate. I find in all the circumstances that the dismissal of the Complainant was not an unfair dismissal and I find his complaint to be not well founded. CA-00035362-002 – Payment of Wages Act 1991 Section 5 of the Act governs the deductions from wages. Section 5 (6) provides for the concept of “wages properly payable”
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Decision:
CA-00035262-001 - Unfair Dismissals Act 1977
Based on the findings above, I have decided that the dismissal of the Complainant was not an unfair dismissal and I have decided that his complaint is not well founded.
CA-00035362-002 – Payment of Wages Act 1991
Based on the findings above, I have decided that the complaint is not well founded.
CA-00035262-003 – Organisation of Working Time Act 1997 I have decided that the complaint is not well founded. |
Dated: 15-03-2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair dismissal. Gross misconduct. |