Complainant

Respondent

Parties

Declan Walsh

First Glass Ltd

Representatives

ESA Consultants

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-00047496-001

05/12/2021

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.

The Complainant commenced working with the Respondent in August 2002.  He was dismissed on 18 June 2021.  A complaint was received by the WRC on 5 December 2021.  An in-person hearing took place on 23 August 2022.

The Respondent provided a written submission.

By way of background the Respondent explained that due to the nature of the business and the skill sets of employees many of the staff do private work for family, friends or others and are provided with products a cost.  It is a strict policy and understanding that any private work is done during break periods or at the end of the day with management permission.  

To facilitate this arrangement staff, have open accounts with the company and when they get paid from their customers, they pay the company. All work carried out, no matter who it is for, must have a Blue Works Docket (a ticket), this includes staff orders.

The Respondent submits that prior to his dismissal there were a number of difficulties with the Complainant’s performance and relationships were strained.

The Respondent submits that following the Complainant’s access to the company premises on 2 May 2021, (the Sunday of a Public Holiday weekend) an investigation was commenced. According to the Respondent, the investigation revealed that while the Complainant had permission from his manager to enter the premises, it became evident that he had exceeded his permission and had gone far beyond the stated purpose of his visit, i.e., to collect wasted timber.

The Respondent submits that the over the course of the days following the start of the investigation the Complainant gave false and differing accounts of what he had done on 2 May 2021, while in the premises.  The Respondent contends that at no time did the Complainant inform the Respondent that he had accessed the property dangerously, worked on a private project, had taken product or that he had failed to get a ticket for the work, or that he had induced a junior staff member to assist him.

The Respondent submits that the Complainant failed at each and every opportunity to give an accurate account of events and when confronted, presented the most elaborate and extraordinary account of events. The Respondent found that this trust was no longer maintainable and decided to terminate the Complainant’s employment because of this.

Regarding procedures, the Respondent submits that everything was carried out as it should have been.  The Respondent notes that the Complainant was informed of his right to appeal his dismissal but chose not to utilise the appeal mechanism.

Mr Ian MacWilliams, a Director of the Respondent company, gave oral evidence under Oath, at the hearing.  In his evidence the witness stated that every piece of work carried out requires a docket and a label. Regarding the investigation into the happenings of 2 May 2021, the witness stated that the Complainant was given opportunities to tell his story but it was only when it became obvious that the Respondent knew more that he started to tell them more.

In response to a question as to why the Respondent had attempted to do a deal with the Complainant after he had been dismissed, the witness stated that it was done to save the Respondent having to appear at somewhere like the WRC.

Ms Michelle Tighe, a Director of the Respondent company, gave oral evidence under Oath at the hearing. The witness explained that she had carried out the disciplinary hearing and that the Complainant had been made aware in advance of the hearing of the allegations that had been made against him and his right to representation.  The witness stated that the decision to dismiss was based on a number of things; what the Complainant had done on 2 May 2021; his failure to disclose what he had done; his failure to raise a docket.  In essence the bond of trust had been broken.

In cross examination this witness stated that the decision to dismiss was made on foot of the investigation and the disciplinary hearing and that every piece of evidence had been looked at closely.

Mr Louis Massey, a manager with the Respondent company, gave oral evidence under Oath at the hearing.  He stated that the Complainant had looked for the keys to the premises as he wanted to get wood, there was no mention of anything else.

The Respondent submits that the relationship of trust between the Complainant and the Respondent was irreversibly damaged by the conduct of the Complainant, that the Respondent followed its procedures which are in line with S.I. 146/2000 and it was the Complainant’s actions which caused the breach of trust.

The Complainant provided a written submission.

The Complainant submits that his dismissal from his employment is disproportionate with his actions, particularly given his long service and good standing within the Respondent Company.

The Complainant submits that on 2 May 2021, he attended the Respondent’s premises, with permission to collect some timber.  However, after he left the premises, the alarm was activated.  A manager subsequently reviewed CCTV footage from that day and then started an investigation into the Complainant’s actions while on the premises. The Complainant was not made aware of this investigation until 18 May 2021, when he was suspended.

The Complainant submits that although an investigation was under way he was only asked casually on 12 May 2021, about what he had been doing in the premises on 2 May 2021.  The following day the Complainant submits that he was called into a manager’s office without notice and put under pressure to sign a false statement, which he refused to do. 

On 18 May 2021, the Complainant was suspended pending a disciplinary hearing. The hearing took place via a remote platform on 4 June 2021.  Although give notes from this meeting the Complainant refused to sign them as he did not believe they were an accurate reflection of the meeting.

On 18 June 2021, the Complainant received a dismissal letter. The Complainant submits that the Respondent failed to follow proper procedures in regard to his dismissal.

The Complainant believes he has been unfairly targeted since 2019 and has been subject to unfounded criticism from management, particularly since the appointment of a new manager in 2019. The Complainant cites issues with his timekeeping, attendance and performance. The Complainant also contends that he was treated unfavourably during the Covid Restrictions (he was out of work for four months) and was only taken back to work after he put pressure on the Respondent.

The Complainant gave oral evidence under Oath at the hearing.  The Complainant stated the procedures used by the Respondent during the disciplinary process were improper. His manager demanded he sign a form which he believed was inaccurate.  He felt the manager who was investigating the matter of 2 May 2021, had already made up his mind as to what the outcome of his investigation would be.  He was accused of lots of things, they did not take his statements, they used unsigned notes to make their decision to dismiss.

The Complainant did not appeal the decision to dismiss as he felt this would be a futile exercise. 

In cross examination, the Complainant agreed he had taken product out of the Respondent’s premises on 2 May 2021 and that he had not told Mr MacWilliams this when Mr MacWilliams approached him about the matter, the Complainant stated that this was because of the way Mr MacWilliams had approached him.  The Complainant stated that he had another opportunity to tell the Respondent that he had taken stuff out of the premises but was afraid to say it because he feared the reaction. Regarding a gap left on a form the Complainant stated that he had not given a reply to one of the questions as he “chose not to do so.”

The Complainant greed he was made aware of his right to representation. He also stated that he had taken up new employment on 4 August 2021.

I have considered this matter carefully.

S6(4)(a) of the Act states 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 the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

In deciding on the fairness or otherwise of this dismissal a number of questions need to be answered.

1.  Were there substantial grounds to justify the dismissal?

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of serious misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear 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 - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In my view, it was reasonable for the Respondent to find that there were substantial grounds to justify the dismissal; working in the premises contrary to safety procedures and the lack of cooperation with the investigation were serious matters.

2.  Was the sanction of dismissal proportionate?

The Respondent put forward that the bond of trust between employer and employee was broken beyond repair and therefore the only option open to them was that of dismissal.  Given the Complainant’s actions on 2 May 2012 and his lack of cooperation with the investigation, I find that the decision to dismiss was, notwithstanding the Complainant’s long service, proportionate.

3. Were the procedures used in the disciplinary process fair?

An employer is bound to show not only had they substantial grounds justifying dismissal but also that he followed fair and proper procedures before dismissal.  In relation to procedures a number of questions need to be answered.

(i) Did the Respondent adhere to its Disciplinary Policy and was that Policy fair?

From the evidence adduced it is my belief that the Respondent did follow the company Disciplinary Policy which is in line with SI 146.

(ii) Was the Complainant given adequate details of the allegations so as to be in a position to adequately address them?  

The Complainant was made aware of the allegations against him as these were outlined to him both verbally and in writing. 

(iii) Was the Complainant afforded an opportunity to defend himself and have his arguments and submissions listened to and evaluated by the Respondent in relation to the threat to his employment?

The Complainant was given opportunity to answer and make submissions on the allegations made.

At the disciplinary hearing, the Complainant was given the opportunity to defend himself and his actions relating to the incidents on 2 May 2021. 

The Complainant had also been made aware of his right to representation stated at the disciplinary hearing that he was happy to proceed on his own.

(iv) Was the Complainant informed of his right to appeal the decision to dismiss?

Yes, he was. He chose not to appeal the decision.

Dishonesty to the root of the contract of employment because it serves to undermine the trust and confidence which is essential to the maintenance of the relationship between employer and employee. Employers are not required to prove the allegations beyond reasonable doubt.  What they must do is establish a genuine belief in the guilt of the employee, based on reasonable grounds and following a thorough and fair investigation. 

Considering the above I find this was not an unfair dismissal.

I find the Complainant was not unfairly dismissed.

Trust, procedures, investigation