Complainant

Respondent

Parties

Alan  Cusack

Kyte Powertech Limited

Representatives

Ms. Shonagh Byrne, SIPTU

Mr. Aaron Shearer BL, instructed by Paul Brady & Co Solicitors

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-00044876-001

01/07/2021

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

CA-00044876-002

01/07/2021

The Complainant commenced employment with the Respondent on 4th January 2016. The Complainant was a permanent, full-time employee, in receipt of an average weekly wage of €580.00. The Complainant was dismissed by the Respondent on the grounds of alleged gross misconduct on 26th March 2021.

On 1st July 2021, the Complainant referred the present complaints to the Commission. Herein, he denied committing the alleged wrong-doing that resulted in his dismissal. He further submitted that the disciplinary process adopted by the Respondent did not respect his rights and did not provide him with a fair hearing. In denying these allegations, the Respondent submitted that the Complainant was dismissed on foot of a robust and fair process, and that they fully investigated all allegations raised against the Complainant.

A hearing in relation to this matter was convened for, and finalised on, 22nd July 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

The Complainant gave evidence in support of this own complaint, the Respondent called a HR representative and a manager to give evidence in defense of the matter. All evidence was given under affirmation and was open to cross-examination by the opposing side.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. As the fact of dismissal is not in dispute, the Respondent accepted the consequent burden of proof imposed by the Act.

The Complainant was engaged as a general operative by the Respondent since 2016. In March 2021, the Respondent received an anonymous call stating that the Complainant had removed a number of pallets from the Respondent’s premises. On foot of this information, the Respondent commenced an investigatory process. This investigation was conducted by a HR representative for the Respondent and involved interviews with numerous members of staff (including the Complainant) and a review of the relevant CCTV footage.

Following from the same, the Complainant was invited to a disciplinary meeting for 25th March 2021. During this meeting, the Complainant had stated that he had removed the pallets on the date in question but stated that he attain permission to do so from his direct line-manager. Notwithstanding the same, the Complainant’s line manager had been interviewed during the investigatory process and had unambiguously stated that he had never given the Complainant permission to take the pallets. In addition to the foregoing, the Complainant’s line manager stated that on 16th March 2021, in advance of the investigation meeting, the Complainant called him and asked him to state that he gave him permission to take the pallets. As a consequence of the same, the Complainant was informed that his conduct on the date in question, the unauthorised removal of company property, constituted gross misconduct and that his employment was to be terminated on foot of the same.

By correspondence dated 30th March 2021, the Complainant elected to appal this outcome. During the appeal hearing, the Complainant representative stated that the procedure adopted was fundamentally flawed in that the initial complaint was made anonymously. As a consequence of the same, the Complainant did not have an opportunity to confront his accuser, in contravention of fair procedures. In addition to the same, the Complainant submitted that the Respondent did not have a sufficiently detailed CCTV policy so as to allow them to retain CCTV footage for disciplinary purposes. Following a consideration of the foregoing points, the Respondent elected to uphold that sanction of dismissal by correspondence dated 16th April 2021. Herein, they stated that they had followed fair procedures throughout the process and that the bond off trust between the parties had been irreparably broken.

By submission, the Respondent stated that in the circumstances outlined, the dismissal of the Complainant was not only a penalty within the range of reasonable responses available to the Respondent, but that it was indisputably the appropriate sanction. The unauthorised removal of company property, along with the Complainant’s attempts to mislead the investigation thereafter, left the Respondent with no other choice in this regard.  As a consequence of the foregoing, the Respondent submitted that the Complainant’s dismissal was fair for the purposes of the present Act and that his application should fail.

The Complainant submitted that his dismissal was substantively and procedurally unfair. The Complainant stated that he removed the pallets in question on 6th March 2021, but stated that he had permission from his line manager to do so. He stated that this permission was secured on the day prior to the incident in question. When invited to an investigation meeting in respect of this matter, the Complainant immediately disclosed this fact as he believed that he had not done anything wrong. The Complainant accepted that he called the team leader in question prior to his investigation meeting but stated that this was done to remind him of their agreement in this regard.

Notwithstanding the same, the Complainant stated that he believed that the sanction of dismissal was disproportionate in the circumstances. He stated that he had been a diligent worker with no prior disciplinary sanctions during his years of service. He also stated that his dismissal for the alleged removal of two pallets, that were considered waste at that stage, was entirely disproportionate. He stated that he believed that these matters were not taken into account when considering the relevant sanctions.

By submission, the Complainant’s representative stated that numerous procedural issues arose throughout the process. She submitted that the initially complaint was anonymous in nature, with the result that the Complainant could not face his accuser. She stated that the Respondent’s internal processes state that CCTV will be used only in circumstances where a “reasonable documented cause” exists. In the present case, the CCTV footage in question was viewed prior to any investigation and the establishment of any such cause. In addition to the foregoing, the Complainant’s representative stated that part of the rationale for dismissal lay with the allegation that the Complainant sought to interfere with the investigation process. This was not an allegation that was raised at the commencement of the process and consequently was not one that the Complainant could properly contest. The Complainant’s representative submitted that the Respondent preferred the line manager’s evidence over the Complainant’s without any explanation as to how this occurred. Finally, the Complainant’s representative submitted that that the investigator was involved in the appeal in breach of fair procedures.

Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“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 [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

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…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

In the present case, a degree of agreement exists in respect of the relevant factual matrix. It is agreed that on 6th March 2021, the Complainant removed pallets from the Respondent’s premises and placed them in his vehicle. Thereafter, a significant conflict of evidence exists as to whether the Complainant had acquired permission to take the pallets from his line manager prior to doing so. When interviewed as part of the process, the Complainant’s line manager expressly stated that he did not provide such permission at any stage. In this regard, the Respondent was presented with a direct conflict of evidence as to this matter. It is apparent that the Respondent accepted the line manager’s version of events in this regard and found that the Complainant had not acquired permission. From the information provided, it is apparent that this belief was founded on the fact that when the Complainant became aware that this matter was being investigated, he contacted his line manager to discuss the issue in advance of his own interview. While a further conflict of evidence arises as to what was discussed during this conversation, the Respondent took the view that this course of action was indicative of guilt on the Complainant’s behalf.

In evidence, the Complainant stated that he acquired permission to remove the pallets either the day before he did so or within the days immediately leading up to the same. He accepted that he removed the pallets in question on 6th March 2021. Ten days later, on 16th March 2021, the Complainant attended an investigation meeting whereby he accepted, to the Respondent, that he removed the pallets but stated that he did so with the permission of his line manager. On that same morning, just after the investigation meeting, the Complainant called his line manager. From the notes of the investigation meeting, it is apparently agreed that the Complainant asked his line manager to confirm that he gave permission to remove the pallets. Again, from the notes of the meeting, it is apparent that the Complainant’s line manager stated that he did not give permission to do so. Thereafter, the Complainant’s line manager was interviewed and confirmed his version of events, along with an account of the phone call that occurred thereafter.   

Having regard to the foregoing sequence of events, I find that it is was reasonable for the Respondent to find that the Complainant’s actions of calling his line manager directly after his own investigation meeting was indictive of wrong-doing on his behalf. While the Complainant has stated that this was done to remind his line manager of the permission, this relates to a conversation that occurred less than two weeks previously and was unlikely to be forgotten by either party.

The Complainant further raised numerous allegations in respect of the process adopted by the Respondent. In particular, they submitted that the initial allegation was made anonymously and that the Respondent was in breach of their internal CCTV procedures by reviewing the same prior to the disciplinary meetings. In the case of Shortt v Royal Liver Assurance Ltd [2008] IEHC332 the High Court held that,

"the authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action…The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result”.

In the present case the Complainant, during the first investigation meeting, accepted that he committed the actions alleged, if not the wrong-doing associated with the same. In this regard, the manner by which the Respondent formed the initial suspicion in respect of the same is somewhat irrelevant, once the conduct in question is admitted. Having regard to the foregoing, I find that the issues raised by the Complainant did not serve to imperil the Complainant’s right to a fair hearing.

The Complainant has further submitted that the sanction of dismissal was disproportionate in the circumstances. He submitted that notwithstanding the issue of the alleged permission to remove the pallets, it was submitted that the same were waste items with no monetary value to the Respondent. In this regard, they submitted that the Complainant had a long, unblemished record of service with the Respondent, and that no evidence was provided of any alternatives to dismissal being considered by the Respondent. In this regard, the Respondent opened correspondence exchanged with the relevant environmental agency. Herein, they requested that staff members be allowed to retain waste pallets for their own purposes. By response, the agency stated that the relevant regulations stated that the pallets in question had to be disposed of in a prescribed manner. On foot of the same, the Respondent issued a notice stating that pallets are not longer to be removed from the site. While the Complainant argued that the notice was not present at the relevant time, it is apparent that he was previously aware of the same when the pallets were removed.

Having regard to the foregoing, it is clear that the Complaint removed the items in question in contravention of an express instruction on the part of the Respondent. It is further apparent that after being contacted in relation to the matter, the Complainant contacted his line manager either to remind him of his prior permission to do so or to instruct him to mislead the Respondent in relation to the same. It is apparent that in circumstances whereby the Respondent found in respect of the latter version of events, they viewed this combination of events to irrevocably breach the bond of trust that must exist between employer and employee and duly terminated his contract of employment.

The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

Having regard to the foregoing, I find that the dismissal of the Complainant was within the band of reasonable responses open to the Respondent and as such his dismissal was not unfair for the purposes of the present Act.

CA-00044876-001 Complaint under the Unfair Dismissals Act

I find that the Complainant was not unfairly dismissed within the meaning of the Act.

CA-00044876-002 Complaint under the Minimum Notice and Terms of Employment Act

I find that this complaint is not well-founded.

Dismissal, Investigation, Contact