Complainant

Respondent

Parties

Shane  Barry

Jordan Motors Limited Martin Barrett Car Sales

Representatives

Derek Dunne BL Derry O'Carroll & Co., Solicitors,

Brian Kearney BL  Sean Ormonde & Co. Solicitors

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-00042615-001

19/02/2021

The Complainant was employed as a motor mechanic with the Respondent from 11th June 2017 until his dismissal on 8th September 2020.

The Complainant qualified as a motor mechanic in 2009. He never received any written terms and conditions from the company. Two complaints about the Complainant’s work were raised with him, one in March 2020 relating to oil leaking, and on 28th July 2020, relating to a fuel pump change. The Complainant did not change the fuel pump through the boot as it was packed, subsequently he was told not to change the fuel pump this way and to change it through the boot. This was not disciplinary action as there was no procedure in place. It was not put in writing. On 28th July 2020 the managing director fired another mechanic for using an incorrect part. On 8th September 2020, the Complainant was called into a meeting and accused by the managing director of failing to carry out safety checks on a Hyundai car in a pre-delivery inspection resulting in a loose wheel on the driver’s side. A customer telephoned complaining about the loose wheel after driving the car to Tralee and said he could have had a serious accident. The Complainant disputed this, said he had done a test drive after the work was done for 3 kilometres and everything was working normally.

The company did not carry out any investigation considering the Complainant’s response. He was not given details of the allegations against him, and no misconduct was proven. The Complainant was dismissed on the basis of allegations. The letter claims the meeting on 28th July 2020 was a disciplinary meeting and refers to a sanction. No sanction was ever given to the Complainant, as there was no procedure in place. Basic fair procedures were not applied in the dismissal. The Complainant was handed a letter of dismissal at the meeting which was prepared beforehand. The letter refers to mitigation which is not correct as the Complainant does not accept, he did anything wrong. He was told he had a right of appeal. He tried to appeal his dismissal, but none was given. The conduct was not proven, immediate dismissal was not warranted, and the Complainant relies on the Employment Appeals Tribunal decision in Lennon v Bredin. The dismissal was disproportionate.

The company has only one mechanic now. The Complainant was out of work for six months and has ongoing financial loss. The Complainant relies on the decision in Cavanagh v Dunnes Stores UD 820 1994.

The Complainant was employed as a motor mechanic with the Respondent on 11th June 2017. The Complainant was repeatedly spoken to about his poor performance. On one occasion the Complainant said a new engine was required for an Audi A6 when the engine was hydraulically locked due to being overfilled with oil and needed to be drained. On another occasion, the Complainant replaced a fuel pump on a car and this took one day instead of the usual hour and a half.

On 28th July 2020, the Respondent dismissed another mechanic for failing to properly secure a wheel of a car which was very dangerous and could have resulted in an accident. At the same time, the Complainant was spoken to in relation to his performance and attitude and “apprentice level” mistakes and told this would not be tolerated.

On 7th September 2020 the Respondent was contacted by a customer who had a pre-sales service on a car he was buying from the garage. The customer had driven to Killarney in the car and said there was a loud noise from the car. A local mechanic inspected the car and told him the car wheels were not secured safely. The Respondent’s service manager carried out the investigation and confirmed the work on the car was carried out by the Complainant who had removed the wheels to change the brakes. The manager concluded the wheels were nipped with an airgun but not manually checked afterwards which was a practice of the Complainant.

The Complainant was invited to a disciplinary meeting on 8th September 2020 regarding failure to carry out the necessary safety checks on a car which are standard practice, and a breach of trust and confidence with the employer. The employer listened carefully to the response given and there were no mitigating factors. The employer carefully considered alternatives to dismissal, but considered the incidents were too serious and there was no alternative to dismissal. An appeal was offered within 5 days, but the managing director considered there was no alternative to dismissal given the seriousness and informed the Complainant.

The Respondent disputes the Complainant’s losses and says the Complainant simply was not looking hard enough as the last two years have been a boom period for qualified mechanics who are in short supply. The Complainant seems to be employed at below market rate on his current wages.

The Respondent relies on the High Court ruling in Bank of Ireland v Reilly [2015] IEHC 241 and that it acted within the band of reasonableness test outlined by MR Denning in British Leyland UK Ltd v Swift [1981] IRLR 91. The Respondent also disputes the Complainant has discharged the onus of mitigation of his loss in line with Sheehan v Continental Administration Co Ltd 9(UD 858/1999) 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”.

I heard and considered the written and verbal submissions of the parties. The hearing of the complaint did not proceed on 16th July 2021 following the ruling of the Supreme Court in Zalewski v An Adjudication Officer & Ors [2021] IESC 24 until legislation was enacted. Subsequently the complaint was heard on 4th November 2021. I heard and considered the oral and written submissions, and witness evidence given.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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 other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides 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 as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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.

The Complainant was not provided with written terms and conditions of employment, or any disciplinary procedure when he commenced employment in 2017.

Mr. Jordan owner of the Respondent gave evidence of patchy performance by the Complainant. He said errors were being made by the Complainant which cost the company, for example it took eight hours to replace a fuel pump that should only take one and a half hours. He agreed the Complainant was not given a formal warning in a disciplinary process for his performance prior to dismissal. He said the service manager carried out an investigation into the complaint of 7th September 2020 and concluded the wheels were not secured properly by the Complainant. The service manager was not present to give evidence at the hearing. The owner said there was serious negligence by the Complainant, who did not accept he made an error. The owner said he considered the alternatives to dismissal, but it was too serious for a small business not to dismiss. He said the Complainant telephoned later looking for a reference and to appeal, but the owner refused due to the quality of his work.

The Complainant gave evidence that he qualified as a mechanic in 2009. A few weeks after lockdown started in 2020, he was asked to replace a fuel pump on an Audi. He could not see where the access point was as the boot was full, he asked a colleague but no one knew how to access. The owner raised this way he had done it and said was not good enough. The Complainant said he was not given a warning or any sanction. In July 2020 another mechanic was fired, and the owner raised the oil spill and fuel pump again with him. The Complainant said he carried out a pre-delivery inspection on the Hyundai car in September 2020, he was very happy it was in order. He took the car for a test drive and there was no issue. A loose wheel would be spotted as it would make a lot of noise. If it was rattling throughout the journey the wheel would have fallen off. At the time a lot of other garages were closed. The Respondent’s garage was not very busy.

No written terms setting out procedures for dealing with performance and disciplinary issues were provided to the Complainant. Statutory Instrument No. 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 applies in this instance. Procedures are necessary to ensure discipline is maintained, disciplinary measures are applied in a fair and consistent manner, and the principles of natural justice and fair procedures are applied. The code requires the allegations are put to the employee, who is given the opportunity to respond fully to the allegations, be represented during the procedure and a fair and impartial determination of the issues concerned, and a right of appeal.

The complaint was made on 7th September 2020 to the Respondent. The service manager was not present at the hearing. There was no evidence presented of any investigation into the allegations, or inspection of the vehicle in order to establish the validity of the complaint, or the Complainants reply. The Complainant was called to a meeting on 8th September 2020 without prior warning, and without an opportunity to be represented. He was handed a letter of dismissal at the meeting. No appeal was given. The timescale in which the Complainant was dismissed was short. The Respondent failed to comply with the code of practice on grievance and disciplinary procedures and did not apply fair procedures in the dismissal. I find the dismissal was unfair on procedural grounds.

The Complainant was receiving €624.00 gross per week when he was employed. He was out of work for twenty-eight weeks and is currently employed on a lesser wage and seeks his ongoing loss of earnings. The Respondent disputes the Complainant properly mitigated his loss. In all the circumstances, it is just and equitable the Complainant be awarded financial loss of €17,472.00 only, and I direct payment by the Respondent.

The Complainant was unfairly dismissed and is awarded financial loss of €17,472.00.

No written terms of employment, fair procedures, natural justice