ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032426
Parties:
| Complainant | Respondent |
Parties | Jamie Hand | Alpha Mechanical Services Limited |
Representatives | Sean Ormonde & Co., Solicitors | Greg Ryan Solicitors |
Complaint:
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-00042906-001 | 08/03/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00042906-002 | 08/03/2021 |
Date of Adjudication Hearing: 15/06/2021
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with 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 complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant was employed as an Air Conditioning Refrigeration Engineer from January 29th 2018 until the termination of his employment on February 2nd 2021. He was paid €1000.00 per week. |
Summary of Complainant’s Case:
The complainant was informed by letter on February 11th, 2021 that he was being suspended from his role with immediate effect. He was told that he was to face a disciplinary hearing the following day to be attended by three senior managers.
However, the following day he was called into a meeting in which he was dismissed on grounds of gross misconduct.
There had been no engagement with the complainant prior to his suspension or dismissal. The suspension was of a summary nature and is indicative of prejudgment.
The investigation and disciplinary stages were conflated and the use of the information from the tracker system was a breach of GDPR requirements.
He was not advised of the purpose of any of these meetings.
The complainant had not even been made aware he was being investigated. The letter suspending him was also prejudicial in that it began that the allegation related to "mis-use of Time Sheets and falsifying information on same" prior to his dismissal.
It also said the suspension was ‘in light of misuse and falsification of documents.
In his own direct evidence, the complainant explained that he did not answer the allegations because he had been accused of stealing money.
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Summary of Respondent’s Case:
The respondent has a tracking system on its vehicles had been installed around September 2019.
Based on information generated by this system it discovered that the complainant’s timesheets were being falsified.
The system allows for identification of when a job is dispatched, the time the employee leaves home to star the work and the length of the job (the operator lists the start and finish button).
Examples given included that he claimed to be in Bray from 8.00 to 15.30 but he only left home at 11.00. There were examples of falsification on the timesheets every day for three months.
The complainant was asked to attend an investigation meeting at which it was put to him that he had been falsifying timesheets and he was suspended.
He was shown the record on which the action was taken and he declined to comment on them, except to say that he had not falsified timesheets
Minutes of the meeting were signed by all who attended and the complainant left the meeting. It lasted about thirty to forty minutes.
He was invited to a disciplinary meeting the following day but not given any indication of the sanction he might face.
He was dismissed on grounds of gross misconduct. |
Findings and Conclusions:
The facts are as set out above. Neither party made written submissions to the hearing. The complainant had stated (twice) on the complaint form that ‘full submissions would follow’, but they did not. When invited to do so after the hearing, (some six weeks having elapsed) he declined. The respondent had been asked for its written statement on March 26th, some five months before the hearing, and also attended without a submission, but did provide relevant material subsequent to the hearing. This is regrettable and requires comment. It is not helpful to the conduct of the process or the making of a decision where an adjudicator, sitting alone is then reliant on notes made during a hearing which s/he is also actively engaged in conducting. No documentation or correspondence, records etc were submitted in evidence. This is all unhelpful to the interests of justice, and natural justice in particular as parties (and the Adjudicator) should know in advance the case they are expected to answer (or hear), and it is disrespectful to the process. Turning to the complaint itself, the respondent came upon information which appeared to indicate very serious wrongdoing on the part of the complainant. The complainant was aware that the tracking system was in use. In addition to the alleged overclaims by the complainant the respondent says his actions resulted in clients also being overcharged. The complainant objected to the use of this information on the grounds that it was a breach of GDPR regulations. The WRC has no direct function in relation to GDPR and no finding of any breach had been established prior to the hearing. Accordingly, this does not provide any basis for an objection to the employer proceeding to act on the information which came to light. There were further objections to the manner in which the process was conducted, specifically the conflation of the investigation and disciplinary phases, and the alleged prejudice represented by the description of the ‘charges’ facing the complainant. In principle, once the facts of a matter are properly established, the ‘conflation’ of the investigation and a disciplinary may be permissible, and all disciplinary hearings should have some element of investigation. What will be different is that the closer any aspect of the process gets to a decision on sanction, then the higher the requirements become from a fair procedure point of view. Thus, an investigation simply concerned with establishing facts will be at the lower end of those requirements, where anything involving conclusions as to conduct will lie further up that scale and closer to those of a full disciplinary process. Any previous information gathered prior to the disciplinary hearing has the status of evidence only and a prudent disciplinary decision maker would be wise to treat it as such, and fully hear both sides at the hearing. The evidence of an investigation obviously carries some weight, especially when carried out by an independent person, but it is not the last word on any matter. In this case there was a preliminary ‘investigation’ meeting but this meeting was chaired by the same person who chaired the disciplinary hearing the following day. At that investigation meeting the allegation and a sample of the actual records generated by the tracking system were put to the complainant but, according to his evidence to the hearing, he declined to comment on them (or, more accurately said he had ‘no comment’) and he left the meeting, which lasted thirty to forty minutes. At the WRC hearing he denied falsifying the time sheets and explained his reluctance to comment on the basis that he was being accused of stealing money. The invitation to the disciplinary meeting, which took place the following day, did not specify what range of sanctions he might be exposed to. In the event he was dismissed for gross misconduct. He found employment quite soon afterwards and his losses were minimal. The allegations against the complainant were very serious, but there are aspects of the process which fall very far short of the requirements of a fair process. Specifically, the notice of the investigation both in terms of time and information was entirely inadequate. Secondly, even in a small business, it is possible, if sometimes cosmetic, to ensure that here is clear separation between the initial pre-disciplinary stage and the disciplinary hearing itself. Also, the disciplinary hearing followed within twenty-four hours of the ‘investigation’ meeting, and it appears as if the complainant was not afforded the opportunity to take advice or get representation. In matter such as this a ‘smoking gun’ or what might appear to represent one to an employer, does not dispose of the requirement to conduct a fair process; the smoke just might have another explanation. In this case the respondent did not do so and its failure represents a sufficient deficit to render the dismissal unfair. Having regard to the complainant’s contribution to the events giving rise to the complaint and the fact that he succeeded in getting work quite quickly, I do not consider that the justice and equity of the case require an award of compensation. However, his claim for payment of notice does succeed and I award him two weeks wages in the amount of €2,000.00 |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of 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.
For the reasons set out above complaint CA-00042906-001 is well founded, but no award of compensation arises. Complaint CA-00042906-002 is also well founded and I award the complainant €2,000.00 |
Dated: 13/09/2021
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Unfair dismissal, fair procedure |