Complainant

Respondent

Parties

Aeron James

Dawn Meats Ireland Unlimited t/a Dawn Meats

Representatives

Ms. Rachel Hartery from SIPTU

Mr. Robin McKenna from Ibec

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-00036395-001

28/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00036395-002

28/05/2020

The Complainant was employed by the Respondent as a General Operative from 7 March, 2010 until 7 May, 2020 when his employment was terminated on the grounds of gross misconduct. The Complainant claims that he was unfairly dismissed from his position and that the manner in which the dismissal was effected was lacking in procedural fairness and natural justice.

The Respondent denies that the Complainant was unfairly dismissed from his employment and contends that he was dismissed as a result of gross misconduct following a thorough and fair disciplinary process.

The Complainant claims that he was summarily dismissed from his employment and did not receive his statutory notice entitlement contrary to Section 4 of the Minimum Notice and Terms of Employment Act 1973. The Respondent disputes the claim and contends that the Complainant was dismissed for gross misconduct, and therefore, was not entitled to statutory notice.

CA-00036395-001 – Complaint under the Unfair Dismissals Act, 1977

The Complainant submits that he sustained an injury at work on 17 March, 2020 and was subsequently certified unfit for work by the Company Doctor until 17 April, 2020. The Complainant stated that he sustained this injury while ushering cattle into a holding pen and that the accident would not have happened if the Respondent had been adhering to its standard procedures for this process. The Complainant stated that he was slammed by a gate and suffered severe bruising to his back and leg from the impact and was certified unfit to work by the Company Doctor on 19 March, 2020. The Complainant remained absent from work on unpaid sick leave until the Company Doctor notified the Respondent directly to relay to him that he was deemed fit to return to work on Monday, 20 April, 2020.

The Complainant submits that he received a letter to his home from the Respondent on 17 April, 2020 requesting him to attend an investigation meeting into allegations of breach of trust and dishonesty. The Complainant stated that this letter did not provide any further detail in relation to the nature of the allegations, and further indicated that he was being placed on suspension for the duration of the investigation.

The Complainant submits that he attended the investigation meeting on 21 April, 2020 and there was a number of allegations of misconduct put to him by the Respondent. This investigation meeting was conducted by Ms. A (HR Generalist with the Respondent). The Complainant was firstly presented with records in relation to his attendance at work and was questioned in relation to absences during the period from 2015 to 2019 which the Respondent contended represented a pattern of sick leave absences. The Complainant submits that the Respondent had not previously raised any issues with him in relation to these sick absences and that he was able to provide a genuine reason to explain all of these absences. 

The Complainant submits that the Respondent then put the allegations in relation to the breach of trust and honesty to him and claimed that they had obtained evidence to indicate that he was working on his private farm while absent on certified sick leave. The Respondent indicated that its suspicions had been aroused after the Complainant had agreed to sell hay from his farm to the company while absent on sick leave. The Complainant stated that he owns a small holding of farmland and that he had regularly in the past sold hay to the Respondent for the layerage of animals. The Complainant stated that he received contact from the Respondent’s Procurement Manager on 20 March, 2020 to request the delivery of a consignment of hay. The Complainant stated that his wife and children loaded the hay into his trailer and that he drove the vehicle to the Respondent’s premises on this date to deliver the hay. The Complainant stated that the hay was off loaded from his trailer by an employee of the Respondent on this date.

The Complainant stated that he was presented with 60 photographs by the Respondent at the investigation meeting which were taken covertly by a private investigator, and which showed him carry out chores on his farmland on 7 to 9 April, 2020 (which was 20 days after his accident at work). The Complainant submits that the photographs which were taken by the private investigator were obtained without his consent. The Complainant stated that the tasks that he was carrying out when photographed by the private investigator were only menial tasks and were not labour intensive. The Complainant disputed the Respondent’s contention that the tasks he was carrying out on his farm were more labour intensive than the duties associated to his job with the company. The Complainant stated that he had no option but to carry out these tasks and tend to his animals regardless of the fact that he was certified unfit to work for the Respondent.

The Complainant submits that his trade union representative wrote to the Respondent on 23 April, 2020 to object about the procedurally flawed manner in which the disciplinary process was being conducted and to relay his serious concerns regarding the use of cover surveillance at his property and farm. However, the Respondent failed to respond to this correspondence.

The Complainant submits that it is noteworthy that the investigation report was retrospectively compiled and dated 27 April, 2020 which was same day as Mr. B (Regional HR Manager) issued an invitation to him to attend a disciplinary investigation meeting. The Complainant contends that it was bizarre that Mr. B carried out a further investigation meeting when the report was issued and was not in accordance with fair procedures. The Complainant states that Mr. B wrote to him on this date and requested him to attend a disciplinary investigation meeting to further discuss the alleged breach of trust and honesty while on sick leave and that he was not allowed representation by his trade union. The Complainant submits that the Respondent failed to separate the investigation from the disciplinary process and that the questioning at the meeting with Mr. B appeared to follow the same pattern as the initial investigation meeting.

The Complainant submits that he received a letter from Mr. B on 1 May, 2020 requesting him to attend a meeting on 5 May, 2020 to advise him of the outcome of the company’s investigations into the matter. This notification was not received on time by the Complainant and the meeting was ultimately held on 7 May, 2020 when he was informed of decision to dismiss. The Complainant submits that he received a further letter from Mr. B on 7 May, 2020 to confirm the dismissal in writing and the reasons proffered were “fundamental breach of trust and honesty”.

The Complainant subsequently appealed the decision to dismiss him to Mr. C (Site Operations Manager) and the appeal was not upheld. The Complainant submits that Mr. C was not the appropriate person to hear the appeal and he was impartial on the basis that he was the person who had instigated the initial investigation in the matter. The complainant also contends that Mr. C failed to take into account the ground of his appeal and that the letter dated 21 May, 2020 in relation to the outcome did not make any reference to the grounds that had been presented.

The Complainant submits that his dismissal was procedurally unfair, and that the Respondent failed to follow its own internal procedures which was in breach of natural justice.  The Complainant claims that there was a disregard for fairness in relation to the manner which the Respondent carried out the disciplinary process that led to dismissal, right up to and including the appeal. The Complainant has submitted that the following elements of the process were procedurally flawed, namely:

·       the investigation was completed without his knowledge via covert surveillance, deliberated on, decisions made and then presented to him;

·       the process was a box ticking exercise to create the illusion of a fair process;

·       no prior knowledge of the specifics of the investigation; retrospective report issued subsequent to representations by the Complainant’s Trade Union;

·       second investigation carried out subsequent to this report being issued which also followed the same format with no terms of reference;

·       the appeal was biased; the outcome of the process was pre-determined, and the Respondent failed to take into account the Complainant’s previously unblemished work record;

·       the Respondent failed to separate the investigation and disciplinary steps within the process. 

The Complainant relied upon the following cases in support of his complaint, namely: Shortt v Royal Liver Assurance Ltd [2008] IEHC 322; Gallagher v Revenue Commissioners [1995] ELR 108; Claire Hayes v Patrick Kinsella t/a Kinsella’s of Rocklands UD690/2012; Orchard House Limited v Triona Raymond UD410/2012; Gearon v Dunnes Stores UD367/1988; Sean Lonergan v Dunnes Stores UD691/2016; Adrian McNeill v Claddagh Building Contractors Ltd UD1775/2014; O’Mahoney v Kerry Ingredients UD1421/2003; Flaherty v Abbott Ireland UD1764/2010; Sharon Timmons v Carlow Women’s Aid UD1087/2015 and Philomena Farnan v KM Healthcare Enterprises UD847/2012.

CA-00036395-002 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by way of summary dismissal on 7 May, 2020.

The Complainant claims that he had a statutory entitlement to six weeks’ notice based on the length of his service with the Respondent.

CA-00036395-001 – Complaint under the Unfair Dismissals Act, 1977

The Respondent disputes the Complainant’s claim of unfair dismissal and submits that he was dismissed on the grounds of gross misconduct following a thorough and fair investigation and disciplinary process.

The Respondent submits that the Complainant was invited to an investigation meeting on 16 April, 2020 to review a pattern of sick leave as well as an attempt by him to sell hay to the company while absent from work on sick leave. An investigation meeting took place on 21 April, 2020 with all the necessary documentation provided to the Complainant in advance. The Respondent submits that the outcome of the investigation was to refer the matter to a disciplinary hearing. The Complainant was invited to attend a disciplinary hearing on 30 April, 2020 in relation to this allegation and this meeting was chaired by Mr. B (Regional HR Manager).

The Respondent submits that having considered all of the facts and the Complainant’s response during the disciplinary process, Mr. B concluded that his actions were in breach of the Company’s disciplinary policy under trust and honesty and amounted to gross misconduct. The Respondent submits that the decision was made to dismiss the Complainant which was communicated to him at a disciplinary meeting on 7 May, 2020. The Complainant appealed the decision via his Trade Union official and the appeal was conducted by Mr. C (Site Operations Manager) on 19 May, 2020. The decision to dismiss was upheld and communicated to the Complainant on 21 May, 2020.

The Respondent submits that the Company adhered to the principles of natural justice and fair procedures at all times and that the Complainant was afforded a full and fair opportunity to consider and respond to the allegations. The Complainant was afforded the right to representation at all stages and the right to appeal the decision which he exercised. The Respondent submits that the Complainant’s actions amounted to gross misconduct and represented a fundamental breakdown in thew relationship of trust between the employer and employee. The Respondent submits that the Complainant contributed fully to his dismissal through his actions.

Evidence of Ms. A (HR Generalist)

Ms. A stated that it was decided to hire the services of a private investigator to investigate the Complainant after he had sold and delivered a consignment of hay to the company while absent from work on certified sick leave. Ms. A stated that she was asked by Mr. B (Regional HR Manager) to conduct an investigation in relation to the allegations of misconduct involving the Complainant and she was given the photographs of the Complainant which were taken by the private investigator. Ms. A stated that these photographs depicted the Complainant carrying out work on his farm while absent on sick leave and they were shown to him during the meeting. Ms. A stated that the Complainant could be seen carrying out various chores such as carrying buckets and bags of meal and loading a trailer on the farm.

Ms. A stated that the Complainant was afforded the opportunity at the investigation meeting to respond and to explain the actions that he could be seen undertaking in these photographs. Ms. A stated that the Complainant accepted that he was carrying out these chores on his farm and indicated that he didn’t have any employees, so it was necessary for him to carry out this work regardless of the fact that he was absent from his job on sick leave. Ms. A stated that the Complainant had a pattern of sick absences from work during the period from October to February each year and this matter was also discussed with him at the investigation meeting. 

Ms. A stated that the investigation was conducted in a fair and transparent manner in accordance with the Company’s internal disciplinary procedures. She stated that the Complainant was afforded representation by a work colleague at the investigation meeting. In cross-examination, Ms. A accepted that that the Complainant had indicated at the investigation meeting that his wife had loaded the hay onto the trailer that was delivered to the Respondent. She stated that the Respondent had relied upon the evidence that was disclosed in the photographs to form the opinion that the Complainant was guilty of misconduct.

Evidence of Mr. B (Regional HR Manager)

Mr. B stated that he conducted the disciplinary hearing in relation to the disciplinary process involving the Complainant.  Mr. B stated that the Complainant had a pattern of absences from work which occurred at the same time each year and that these absences were taken into account as part of the disciplinary process. However, Mr. B stated that the absences were not weighted anywhere near as strongly as the breach of trust and confidence which arose as a result of the Complainant carrying out work on his farm while on certified sick leave from his job with the Respondent.

Mr. B stated that the photos taken by the private investigator were shown to the Complainant at the disciplinary meeting and they demonstrated that he was carrying out physical labour while absent on certified sick leave. Mr. B stated that the type of chores that the Complainant was carrying out in these photos were, in his opinion, more strenuous and labour intensive than the type of work that he was required to carry out in his role with the Respondent. Mr. B stated that he did not obtain a medical assessment of the Complainant prior to taking the decision to dismiss and he formed the view that he shouldn’t have been able to carry out the work he was depicted doing in the photos if he was certified unfit to work in his role for the Respondent.

Mr. B stated that he took the decision to dismiss the Complainant on the basis that the there was a fundamental breach of trust and confidence in him as an employee arising from him carrying out work on his private farm while absent on certified sick leave from his job with the Respondent. Mr. B stated that he did not consider any alternative sanction and he was satisfied that dismissal was the appropriate sanction in the circumstances. In cross-examination, Mr. B disputed the Complainant’s contention that the sanction of dismissal was pre-determined from the outset of the disciplinary process or that the process was procedurally unfair. Mr. B stated that the Complainant was allowed the opportunity of representation by a work colleague at the disciplinary hearing.

Evidence of Mr. C (Operations Manager)

Mr. C stated that he took the decision to hire the private investigator after information had come to light that the Complainant had delivered a consignment of hay to the Respondent while absent from work on certified sick leave. Mr. C stated that he did not have any involvement in the disciplinary process involving the Complainant until he conducted the appeal after the decision to dismiss had been taken. Mr. C stated that he considered all of the grounds of appeal put forward by the Complainant and decided to uphold the decision to dismiss on the basis that his actions of working while on certified sick leave constituted a breach of trust and dishonesty and amounted to gross misconduct. Mr. C stated that he took into consideration the Complainant’s previously unblemished disciplinary record but felt that dismissal was the appropriate sanction given the gravity of the offence.

In cross examination, Mr. C stated that he consulted with the Financial Controller about the hiring of a private investigator when information came to light that the Complainant had sold hay to the Respondent while absent on certified sick leave. Mr. C disputed that he had any involvement in the investigation or disciplinary process prior to the appeal or that the dismissal of the Complainant was pre-determined from the outset of the process. Mr. C denied that he had seen the photographs which were taken by the private investigator or that he had been provided with a copy of the investigation report by Ms. A prior to its finalisation. Mr. C also disputed the contention that he was not impartial or independent in relation to the manner in which he conducted the appeal process.

CA-00036395-002 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

The Respondent disputes the claim under Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 and contends that the Complainant was not entitled to statutory notice on the basis that he was dismissed from his employment for gross misconduct.  

CA-00036395-001 – Complaint under the Unfair Dismissals Act, 1977

The 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.”

In reaching my decision I have taken into consideration of all written and verbal submissions of the parties and I have had full regard to the evidence adduced in the course of the proceedings.

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

The Respondent contends that the Complainant was dismissed as a result of dishonesty and a breach of trust which was held to amount to gross misconduct following the conclusion of a thorough investigation and disciplinary process which fully complied with the principles of fair procedures. The Respondent submits that the Complainant’s actions in carrying out manual and physical labour on his farm while absent from his job on certified sick leave was dishonest and amounted to a fundamental breach in the relationship of trust between the parties.  The Respondent contends that the conclusion reached both in relation to the factual findings made following the investigation of the matter and the decision to dismiss fall squarely within the range of responses which a reasonable employer was entitled to reach.

The Complainant denies that his actions in carrying out work on his private farm while absent on sick leave amounted to gross misconduct. The Complainant contends that the investigation and disciplinary process which was conducted by the Respondent was procedurally flawed and lacking in fairness and that the decision to dismiss was pre-determined from the outset of the process. The Complainant contends that the Respondent’s decision to dismiss him did not fall within the range of reasonableness and that the sanction of dismissal was disproportionate given his clean disciplinary record within the company up to April, 2020.

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 E.L.R. 229 where it was held 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 …. “.

In the case of Samuel J. Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”.

In considering the fairness or otherwise of the dismissal, I am also obliged to consider if the sanction of dismissal was proportionate to the alleged misconduct the circumstances. The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical Services Ltd [2012] 23 E.L.R.195 that: “The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?”.

In Panasov v Pottle Pig Farm UDD175 the Labour Court outlined the importance of applying fair procedures in relation to the investigation of allegations of misconduct where it held that: “The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.”

In Dunne v Harrington UD166/1979 the EAT provided guidance in relation to the approach that should be applied by an employer when conducting an investigation into a case of dishonesty which may lead to dismissal. The EAT held that:

“(a) personally in a fair and reasonable manner, i.e. as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence” or he may:

(b) rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (i.e. the employee in these circumstances) should be heard. In short, an employer actingon the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.”

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (SI No. 146/2000) 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.

I have carefully considered the manner in which the investigation and disciplinary procedures were applied in the present case, and I am satisfied that there were a number of fundamental aspects of the process which did not meet the required standards of procedural fairness.  

Firstly, the Complainant did not receive either written or oral confirmation or notification of the precise nature of the allegations of gross misconduct that were being levelled against him prior to the commencement of the investigation and disciplinary process. In this regard, I note that the Complainant was informed by letter dated 16 April, 2020 that he was required to attend an investigation meeting to discuss “allegations into breach of trust and dishonesty” on 21 April, 2020. The Complainant was placed on suspension at that juncture without having been properly informed of the nature of the allegations of gross misconduct that were to be subject of the investigation.

It subsequently transpired at the investigation meeting that the Complainant was confronted with two separate sets of allegations, firstly, that there had been a pattern of absenteeism by him which followed a particular trend each year and secondly, that he had been working on his private farm while absent on certified sick leave. I note that the Respondent’s Disciplinary Policy clearly states on page 2 that “Before the start of any stage in the procedure, you will be told of the nature of the complaint against you”.  I am satisfied that the Respondent did not adhere to this step in its own procedures, and it is clear from the evidence adduced that the Complainant was totally unaware of the precise nature of the allegations concerning a breach of trust and dishonesty that he was facing prior to the investigation meeting on 21 April, 2020.

Secondly, I also have grave concerns in relation to the manner in which the allegations of gross misconduct were presented to the Complainant at the investigation and disciplinary hearings and it is clear that there was a lack of clarity throughout this process in relation to the precise nature and extent of the charges that were being pursued against him by the Respondent. In this regard, it was common case that the Respondent raised the two aforementioned sets of allegations (namely the alleged trend of absenteeism and working elsewhere while absent on certified sick leave) against the Complainant at both the investigation and disciplinary meetings. However, based on the evidence adduced, it is clear that the Respondent did not make, or communicate, any definitive findings at either stage of the process in relation to the alleged absenteeism despite the fact that the Complainant had put forward plausible explanations to justify all of the periods of absence that were presented to him. Notwithstanding the failure of the Respondent to make a definitive or clear finding on this issue at either the investigation or disciplinary stages of the process, I am satisfied that it was a material factor which was taken into consideration by Mr. B (Regional HR Manager) albeit not the primary reason when making the decision to dismiss the Complainant.

Thirdly, I am satisfied that there was a number of procedural shortcomings and irregularities in relation to the manner in which the investigation and disciplinary process was conducted. In this regard, I also have serious concerns in relation to the multiplicity of roles that were played by the two key decision makers namely, Mr. B (Regional HR Manager) and Mr. C (Operations Manager) in the disciplinary process which resulted in the dismissal of the Complainant. In relation to the role of Mr. B (Regional HR Manager) it is clear that he conducted the disciplinary hearing in relation to the allegations of gross misconduct and that he ultimately took the decision to dismiss the Complainant following the conclusion of the disciplinary process. However, I am satisfied that Mr. B also had an integral role in the investigation stage of the process given that he initiated the investigation by appointing Ms. A to conduct same, he had sight of the photographs taken by the private investigator prior to the commencement of the investigation and also took the decision to suspend the Complainant pending the investigation of the allegations of gross misconduct. Furthermore, I also note that it was stated in the investigation report which was compiled by Ms. A after the investigation meeting that it was being sent to both Mr. B and Mr. C “for consideration prior to finalization”. I am satisfied that the effect of aforementioned involvement of Mr. B resulted in an insufficient degree of separation between the investigation and disciplinary stages of the process.

In relation to the role of Mr. C (Operations Manager) it is clear that he conducted the appeal in relation to the decision to dismiss the Complainant. However, I am satisfied that Mr. C also took the decision to hire the private investigator prior to the commencement of the disciplinary process to carry out the covert surveillance on the Complainant after the Respondent’s suspicions had been aroused that he was working elsewhere while absent on certified sick leave. I note that it was also not in dispute that Mr. C had sight of the photographs which were taken by private investigator prior to the commencement of the investigation process. I further note that there was a dispute between the parties on the question of whether Mr. C was provided with a copy of the investigation report following the conclusion of the investigation by Ms. A into the matter. Mr. C adduced evidence that he did not receive the investigation report until immediately before he conducted the appeal into the dismissal. However, on balance, I have found the Complainant’s evidence on this matter to be more compelling and in coming to this conclusion I have taken cognizance of the fact that it was indicated in the investigation report that the document was being circulated to Mr. C “for consideration prior to finalization”.

I am satisfied that the aformentioned procedural deficiencies and the multiplicity of roles played by both Mr. B and Mr. C in the disciplinary process casts a considerable degree of doubt as to whether their participation in the process was conducted in accordance with the required levels of impartiality and independence such as to raise legitimate concerns in relation to the overall fairness and integrity of the process.

Fourthly, I have also taken cognizance of the fact that the Respondent did not consider or make allowances for any mitigating factors put forward by the Complainant or alternatives to dismissal in the circumstances of the present case. It was not in dispute that the Complainant had an unblemished disciplinary record prior to the events that led to his dismissal while he was absent on certified sick leave in March/April, 2020. It was also common case that the reason why the Complainant was absent from work on certified sick leave during this period was because he had sustained a work-related injury on 17 March, 2020 while tending to his duties and was certified unfit to work by the company doctor until 20 April, 2020. Furthermore, the Complainant was not being paid by the Respondent during the period of his absence on certified sick leave.

I note that the Complainant did not dispute that he had been carrying out chores on his private farm during the material period in question when questioned about this matter and presented with the photographs which had been taken of him engaging in such activity during the course of the disciplinary process. I also note that the Complainant vehemently argued during the disciplinary process that the chores which he was carrying out were menial in nature and that he had no other alternative but to perform these tasks during the period of his sick absence because of the necessity to tend to his animals notwithstanding the fact that he was still suffering the ill effects of the injuries he had sustained at work.

Having regard to the evidence adduced, I am satisfied that the Respondent had scant regard to the responses provided by the Complainant in response to the allegations of gross misconduct and failed to give fair value to his explanations (as per the EAT in Dunne v Harrington) or the mitigating factors put forward in relation to the necessity and reasons why he was actually carrying out the work in question while he was absent on sick leave. Having regard to the totality of the evidence adduced, I am satisfied that the sanction of dismissal was disproportionate and did not fall within the range of reasonable responses in all the circumstances.

In the circumstances, I find that the Complainant’s dismissal was both substantively and 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-00036395-002 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

The Complainant claims that the Respondent has contravened the provisions of Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 by failing to provide his statutory notice entitlements or payment in lieu thereof when his employment was terminated by way of summary dismissal on 7 May, 2020.

Having regard to my findings above that the Complainant was unfairly dismissed from his employment, I find that the Respondent has contravened the provisions of Section 4(2) of the Act by failing to provide the Complainant with his statutory notice entitlements. Accordingly, I find that the Complaint is well founded.

CA-00036395-001 – Complaint under the Unfair Dismissals Act, 1977

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 find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

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 an average net weekly wage of €427.77 by the Respondent (during the 12 month period immediately prior to his dismissal). The Complainant adduced evidence that he obtained alternative employment on 29 September, 2020 and is being paid a higher rate of remuneration that he was earning with the Respondent. I afforded both parties the opportunity to make submissions in relation to the Complainant’s loss arising from his dismissal and his efforts to mitigate those losses, of which I have taken into account in deciding the quantum of the award of compensation. Having regard to the foregoing, I deem that an award of €10,000 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 which I deem attributable to future loss of earnings arising from his dismissal. 

CA-00036395-002 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

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.

I find that the Respondent has contravened the provisions of Section 4(2) of the Act by failing to provide the Complainant with his statutory notice entitlements. Accordingly, I find that the complaint is well founded. I hereby order that the Respondent pay the Complainant the sum of €2,566.62 (being the equivalent of six weeks’ pay) in compensation for the loss sustained by reason of the contravention.

Unfair Dismissals Act 1977 - Section 6(4) – Gross Misconduct – Dismissal Procedurally and Substantively Unfair - Complaint Well Founded – Compensation Awarded – Minimum Notice & Terms of Employment Act 1973 – Section 4(2) – Statutory Notice