ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025028
Parties:
| Complainant | Respondent |
Anonymised Parties | A Waiter | A Restaurant |
Representatives |
| Terry Gorry & Co Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00031529-012 | 11/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00031529-013 | 11/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00031529-015 | 11/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00031529-016 | 11/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00031529-017 | 11/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00031529-018 | 11/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00031529-019 | 11/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00031529-020 | 11/10/2019 |
Date of Adjudication Hearing: 11/03/2021
Workplace Relations Commission Adjudication Officer: James Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 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 claims that when he arrived at work on 6 October 2019 he was approached by his Manager and told to leave the premises immediately, that he was under investigation by An Gardai Siochana, and they will be in contact. He has not been called back to work since. The Respondent said that there were substantial grounds for termination of the Complainant’s contract of employment, specifically gross misconduct and breach of the Respondent’s policies. |
Summary of Complainant’s Case:
CA-00031529- 012 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 The Complainant said that he never got a contract of employment from the employer during his time working with the Respondent. CA-00031529- 013 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 The Complainant said that he was not notified in writing of a change to his terms of employment, he was asked to leave his workplace on 6 October 2019, and he never returned to work. CA-00031529- 015 and CA-00031529- 016 and CA-00031529- 020 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 The Complainant said that on 27 September 2019 he had a verbal confrontation with a fellow work colleague at the back of the restaurant where he worked. He said no one else was involved, no one had to intervene, and he and his workmate sorted out matters themselves. He said the following night his manager, Mr. A, asked him to follow him into a room at the back of the restaurant and locked the door behind them. He said Mr A, offered him two options, either he gives notice that he was to leave, where he would get a reference, or that Mr. A would dismiss him without a reference. The Complainant said that he did not know what the problem was, but if there was a problem it could be resolved, and he said that he felt he had no reason to leave. The Complainant said he went back to work as per usual. On 4 October Mr. A approached him again and asked him to sign a document, which he refused to do so there and then. He took it with him so that he could read it. He said the document referenced him accepting a final written warning following a disciplinary hearing of 28 September 2019. He said that he felt intimidated, and he has been pushed out from his job. He claims that he returned in for work on 6 October where Mr. A approached him and told him to leave the Restaurant premises and for him not to return. There was no explanation why. He said Mr. A told him that he was under investigation by An Gardai Siochana. He said he did not know what had happened, nothing was explained to him, he did not know what he was under investigation for and was concerned. He said he waited for contact from his employer or An Gardai Siochana, but nothing happened. He said he could not wait any longer and decided to approach An Gardai Siochana for clarification of the case he was facing. When he approached An Gardai Siochana, they told him that he was not under investigation for any case. No one has approached him on the matter since that time and he has not returned to work since. CA-00031529- 017 - Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 The Complainant said that he has not returned to work since 6 October 2019 and is seeking his statutory redundancy, if he was made redundant. CA-00031529- 018 - Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 The Complainant said that there was no notice on the termination of his employment. He was told to leave and not come back, and no one has been in contact with him since. He said that he was not given any notice in accordance with the Minimum Notice & Terms of Employment Act, 1973. CA-00031529- 019 - Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 The Complainant maintains that he was treated differently to other staff working with the Respondent. He said some staff working there were given two and a half days off per week where he was only given two. |
Summary of Respondent’s Case:
CA-00031529- 012 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 The Respondent said that the Complainant’s most recent and current terms of employment was printed out and given to him on 19 June 2019. However, he did not sign and return it to the Respondent. A copy was provided in evidence. CA-00031529- 013 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 The Respondent said that the complaint should fail because the Complainant claims he was not given notice of a change to his terms of employment, but he fails to set out any change to this contract that would ground this claim. CA-00031529- 015 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 The Respondent said that this complaint should fail because substantial grounds existed for the termination of the contract of employment, specifically gross misconduct and breach of policies and procedures in the workplace concerning customers’ private data, aggression and physically threatening posturing towards a colleague, the employer's loss of trust and confidence in the complainant, and the Complainant’s failure to perform the contract of employment in a satisfactory manner. The Respondent said that on Sunday 6 of October it was brought to the Manager’s attention that the Complainant had been observed taking photographs/videos of its reservations. The Manager confirmed this by viewing footage from CCTV. It said that the Complainant has no authorisation to access the company’s records and believed that he may have accessed sensitive customer data. It said on that basis it had no alternative than to suspend him, with full pay, pending an investigation. Subsequently, the Gardai Siochana were notified of the situation and GDPR consequences. The Respondent said that the Complainant was presented with a “Confirmation of Final Written Warning” following an aggressive altercation with a work colleague. However, he refused to sign this document. This was presented to him after viewing CCTV footage that showed him twice shoving this colleague, which subsequently meant both a male and female colleague having to intervene. It said that the severity of his actions of gross misconduct was warranted. CA-00031529- 016 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 As noted in CA-00031529- 015 above CA-00031529- 017 - Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 The Respondent said that the reason for the dismissal was gross misconduct. The Complainant was not made redundant; therefore, this claim is not applicable, and the complaint must fail as no redundancy existed. CA-00031529- 018 - Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 The Respondent said that the reason for the dismissal was gross misconduct, and no minimum period notice is required in such instances. The employee was given sufficient notice having regard to the reasons for his dismissal as he was dismissed summarily once facts had been established as to his gross misconduct. Furthermore, the Complainant failed to appeal either his Final Written Warning of 4 October 2019 or his notice of termination of 11 October 2019. CA-00031529- 019 - Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 The Respondent said that each individual employee has individual terms. The Complainant failed to provide any evidence to support this claim that he was treated less favourably than a comparable permanent employee and fails to provide particulars of a comparator or the basis for the claim. CA-00031529-020 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 As noted in CA-00031529- 015 above Legal Submission The Respondent noted the decision in Looney & Co. Ltd. v Looney UD843/1984, where it refers to the need to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.” The Respondent also referred to the decision in Shortt v Royal Liver Assurance Ltd (2008) IEHC 332 where Laffoy J outlined that a central consideration to a fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result.” In Murphy v College Freight Ltd. (UD867/2007) it noted that the EAT found that a disciplinary procedure does not need to “be a counsel of perfection” but rather “they must be fair.” It referred to Fanning v. University College Cork [2002] IEHC 85 where the High Court held that the “plaintiff has not come to equity with clean hands... In the circumstances this plaintiff has disentitled himself to the equitable reliefs he seeks in this case. In the result I therefore dismiss his case.” The Respondent claimed that the Complainant, having regard to his conduct in the workplace, does not come to the WRC with “clean hands”. The Respondent also cited the authorities in McCarthy -v- O'Sullivan Bros DIY (UD800/1989) / [1991] ELR 44 – and Billingsley -v- Applus Car Testing Ltd. (UD17/2013) with regard to the Complainant who was in a position of trust and that was irrevocably broken once he breached policies and procedures in the workplace regarding customer personal data, credit card details, and inappropriate, aggressive behaviour towards a colleague. The Respondent’s position is that a fair procedure - one which involved the putting of allegations to the Complainant and an invitation to provide an explanation - was provided in the instant case and the correct outcome was achieved given the nature of the allegations. it said that the law requires “substantial grounds” to be found to justify a dismissal and does not require perfection in the procedure to be followed. The Respondent refers to the decision of Coad v Eurobase (UD1138/2013) where the Tribunal noted, “In calculating the level of compensation the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal in Sheehan v Continental Administration Co. Ltd. (UD858/1999) that 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 profitably employed in seeking to mitigate his loss.” |
Findings and Conclusions:
CA-00031529- 012 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 There was a conflict of evidence between the parties as to whether a statement of terms and conditions of employment were presented to the Complainant. The Respondent submitted in evidence a copy of a document which it claims it presented to the Complainant. On the balance of probability, I prefer the evidence of the Respondent in relation to this complaint. Accordingly, I find that the claim is not well-founded. CA-00031529- 013 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 Having considered the evidence submitted from the parties and in particular the oral evidence from the Complainant in relation to this claim, namely that he was asked to leave his place of employment on 6 October and this he deems was an amendment to his terms and conditions, I am not satisfied that this falls within the scope of the claim made out under section 7 of the Terms of Employment (Information) Act, 1994. Accordingly, I find that the claim is not well-founded. CA-00031529- 015 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 The Relevant law Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides: “(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. … (4) 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 one or more of the following: (a) not relevant (b) the conduct of the employee (c) not relevant (d) not relevant (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 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.” It is well established in case law that it is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent's position and circumstances, would have done so. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process. I note in the case of O'Riordan v Great Southern Hotels UD1469/03 the EAT held that: "In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing." Likewise, in considering the approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly [2015] 26 ELR 229 where I note it states: “…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 …”. The dismissal is not in dispute. The facts that lead to the dismissal are somewhat in dispute and appear to stem from two incidents. The Respondent contends that the Complainant was dismissed on the grounds of gross misconduct after he had been involved in a physical confrontation with a colleague in the workplace where he was served with a warning and advised to take care of his behaviour. The Respondent then contends soon after he was found to have been recording sensitive data from its IT systems and that it reported this to An Gardai Siochana and he was dismissed once it had reviewed CCTV. It claims that it carried out the necessary investigation and disciplinary process in relation to this matter and although the procedure may not be flawless, it was too serious in nature, and it had to act. The Respondent contends that it behaved in a reasonable and proportionate manner given the nature of the incident and the conduct of the Complainant. The Complainant does not dispute that he was involved in an incident with a colleague in the workplace. However, he claims that there was provocation and the two involved addressed the matter themselves, sorted out their issues, and no one else was involved. He claims he was surprised that the issue was raised again and asked to accept a formal warning without any proper investigation or process. As regards the second incident, he is completely in the dark as he did nothing improper; he said that he was approached when he arrived at work and simply told to go home that he was under investigation for something he was unaware of, and he was shocked. He had to approach the authorities himself to determine what the allegations were. He vehemently denies that he did anything improper, he said he simply took a screen shot of the roster on his phone like all employees do, nothing more. In evidence he presented a former employee as a witness, who said in evidence that employees taking a screen shot of the PC of the roster was normal practice when he worked with the Respondent. The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures, which include that: 1. the details of the allegations or complaints be put to the employee concerned; 2. the employee concerned be given the opportunity to respond fully to any such allegations or complaints; 3. the employee concerned is given the opportunity to avail of representation; and 4. the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances. I have carefully considered the manner in which the investigation and disciplinary process was conducted in the present case, and I am satisfied that there were a significant number of aspects of the process which did not meet the required standards of procedural fairness. I am satisfied that the Respondent’s investigation of events that led to the dismissal of the Complainant was in complete isolation of the Complainant’s case. Mr. A seem to have received information, carried out his own investigation and consultation of CCTV evidence and formed his opinion and delivered his judgment accordingly. In this case Mr A was the only investigator, decision maker in the investigation/disciplinary process. I am far from convinced that there was anything equivalent to a disciplinary hearing in either incident. I note that Mr. A’s evidence was that he consulted the incidents via the CCTV recording and came to his conclusions. Having regard to the totality of the evidence adduced, I am satisfied that the aforementioned procedural deficiencies which occurred throughout the disciplinary process led to the Complainant being dismissed and left without employment. In the circumstances, I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is well founded. CA-00031529- 016 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 I find that this is a duplicate of CA-00031529- 015 above. CA-00031529- 017 - Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 Having considered the evidence in its totality. I am satisfied that this was not a case of a genuine redundancy, as noted above it is clear that the Complainant was dismissed for what the Respondent considered to be gross misconduct. Accordingly, I find that the within claim is not well-founded. CA-00031529- 018 - Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 Having found above that the Complainant was unfairly dismissed without any notice I find that the complainant is entitled to compensation under the Minimum Notice & Terms of Employment Act, 1973. Based on the evidence of the Complainant, I find that the Complainant had in excess of 2 years’ service with the Respondent at the time his employment was terminated on 6 October 2019. Therefore, the Complainant had accrued a statutory entitlement to two weeks’ notice in accordance with the provisions of Section 4(2)(d) of the Act on the termination of his employment. I find that the Complainant was not afforded his statutory notice entitlement or payment in lieu thereof prior to the termination of his employment with the respondent. Accordingly, I find that the Complainant is entitled to compensation in respect of two weeks’ notice in accordance with the aforementioned provisions of the Act. CA-00031529- 019 - Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 I note the Complainant claims that different staff had different arrangements, some staff had two and half days off per week while he had only two days off per week. The Complainant did not establish that he was on a fixed term contract, and those that he referred to on permanent contracts. The Respondent said that each individual working there had their own individual terms and hours of work. Having considered all the evidence and having noted in particular the Complainant’s claim that he had no contract of employment while he was working with Respondent, not to mind that it was deemed a fixed termed employment as per under the definitions as provided for by the Protection of Employees (Fixed-Term Work) Act, 2003, accordingly, I find that on the balance of probability that the Complainant was not treated in a less favourable manner than a comparable permanent employee. I find that the within claim is not well-founded. CA-00031529-020 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 I find that this is a duplicate of CA-00031529- 015 above. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
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.
CA-00031529- 012 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 I find that the claim is not well-founded. CA-00031529- 013 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 I find that the claim is not well-founded. CA-00031529- 015 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 I find that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that the Complainant was being paid a net weekly wage of €350 at the time of his dismissal. The Complainant adduced evidence that he was able to secure work, a month later and he is paid more per hour in his new employment. Having regard to this fact, I deem that an award €1,400 (one thousand four hundred euro) which equates to €350 x 4 weeks to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss arising from his dismissal. CA-00031529- 016 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 I find that this is a duplicate of CA-00031529- 015 above. CA-00031529- 017 - Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 I find that the within claim is not well-founded. CA-00031529- 018 - Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 I find that the complaint is well founded and in accordance with the provisions of Section 12(1) of the Minimum Notice and Terms of Employment Act, 1973, I order the Respondent to pay to the Complainant the sum of €744.42 (seven hundred and forty-four euro and forty two cent) being the equivalent of 2 week’s pay as compensation for the breach of Section 4(2) of the Act CA-00031529- 019 - Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 I find that the within claim is not well-founded. CA-00031529-020 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 I find that this is a duplicate of CA-00031529- 015 above. |
Dated: 13/09/2021
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Unfair Dismissals – lack of procedures - |