Complainant

Respondent

Parties

Gerard  O'Connell

MDE Installations Ltd

Representatives

Mr. Darren Erangey, Connect Trade Union

Mr Dylan Loughlin, Copatec Business Solutions

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-00047655-001

14/12/2021

The Complainant commenced employment with the Respondent on 10th February 2020. The Complainant was a full-time, permanent member of staff, in receipt of an average weekly wage of €949.15. The Complainant’s employment was terminated by the Respondent on 9th July 2021.

On 14th December 2021, the Complainant referred the present complaint to the Commission. Herein, he alleged that he had been unfairly dismissed by the Respondent. By further submission, he alleged that his dismissal was procedurally and substantively unfair. In denying this allegation, the Respondent submitted that they engaged in a robust disciplinary process that respected the Complainant’s natural and contractual rights. They further submitted that in circumstances whereby the Complainant failed to attend a scheduled disciplinary meeting, they were entitled to view the charge as gross misconduct.

A hearing in relation to this matter was convened for, and finalised on, 23rd September 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 side during the hearing.

During the hearing, the Complainant gave evidence in support of this complaint under affirmation. The Respondent called a HR representative to give evidence in defense of the allegations. All evidence was given under affirmation was open to cross examination by the opposing side. In circumstances no issue arose as to dismissal as a fact, the Respondent accepted the consequent burden of proof and presented their case prior to the Complainant.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

By submission the Respondent stated that the Complainant’s dismissal was procedurally and substantively fair.

The Complainant commenced employment with the Respondent as a smart meter installer on 10th February 2020. Just as the Complainant finished his training, the restrictions arising from the Covid-19 pandemic were introduced. As the activities of the Respondent were deemed essential during this period, the Complainant was not placed on lay-off and continued to work as normal. In or around this time, the Complainant requested that he be assigned outside work only, as he believed that he was a vulnerable person in respect to the Covid-19 virus. The Respondent considered this request, however they determined that they were logistically unable to provide such work and in circumstances whereby the Complainant was provided with PPE, this request was denied. Notwithstanding the same, the Complainant repeated this request on a number of occasions, with the Respondent’s response remaining the same.

On 7th April 2021, the Complainant was verbally advised that his level of absence, in particular non-certified short absence was excessive. Despite this conversation, further issues arose regarding the Complainant’s attendance. In particular, the Complainant was absent without prior authorisation or explanation from 12th April – 15th April. On his return, the Complainant was advised that any further instances of such conduct would be processed through the Respondent’s disciplinary policy.

On 21st April, the Complainant was issued with a letter of concern for the unauthorised use of his company vehicle in this private time. As a result of the same, the Respondent informed the Complainant that €100 would be deducted from his next pay run.

On 28th, 29th & 30th April, the Complainant was absent on what be believed to be annual leave. On his return, he was advised that as the leave was not pre-approved, it would be treated as unpaid leave.

Following a similar period of unauthorised annual leave, the Respondent’s head of HR contacted the Complainant to discuss the issues that had arisen in the course of his employment. During this conversation, the Complainant stated that he would not return to work until such a time as all wages he understood to be outstanding were repaid.

Following this conversation, the HR Manager invited the Complainant to a disciplinary meeting in respect of his continued absences without leave, the preconditions the Complainant set down in respect of working outdoors only and the Complainant’s “constant questioning of the rationale for decisions you have already accepted”. The Complainant was advised that these allegations may constitute gross misconduct and could, potentially result in the Complainant’s dismissal. By response, the Complainant advised that he would not be attending any such meeting. As a result of the same, the Complainant’s employment was terminated by correspondence dated 20th July 2020.

The Complainant was engaged as an electrician with the Respondent. The Complainant’s primary duty was the installation of smart meters. At the outset of his employment, the Complainant was assured that he would be assigned to the Galway region, however this did not transpire and he was instead assigned duties in the north-east region.

During the period of the restrictions arising from the Covid-19 pandemic, the Complainant requested that he be assigned outdoor only duties as he suffered from a pre-existing medical condition. This request was refused for reasons unknown to the Complainant. Following this request, the Complainant believed that he was subjected to an increased level of scrutiny in relation to the performance of this role. In particular, the Complainant referenced a false allegation of an unsafe work-practice that was levelled against him.  Following an investigation on relation to the same, the Complainant was found to be innocent of the charge. Notwithstanding the same, the Complainant commenced a period a stress-related sick leave shortly thereafter. On his return to work, a family emergency arose that required the Complainant to take another period of unpaid leave. This leave was taken with the consent of the operations manager of the Respondent.

In mid-2021, the Complainant booked a period of annual leave from Monday 21st June to Friday 25th June 2021. On this return to work on Monday 28th June, the Complainant was informed that his request for annual leave had been declined and that he would not be paid for the period of leave. On Wednesday 30th June the Complainant commenced a further period of pre-arranged annual leave. Notwithstanding the same, the Respondent again refused to pay the Complainant for these days of annual leave.

On 7th July, the Complainant was invited to a disciplinary meeting for 9th July. Given the lack of adequate notice of this meeting, the Complainant’s representative requested a brief adjournment of this meeting.  No response was received to this communication. On Friday 9th July, the Complainant received an invite to a further disciplinary meeting dated 12th July. The Complainant stated that he would not attend this meeting as he did not understand the charge and had no faith in the Respondent to engage in a fair procedure. On 20th July the Complainant received correspondence stating that he was guilty of gross misconduct and that his employment was terminated from 9th July 2021.

By submission, the Complainant’s representative stated that the Complainant’s dismissal was fundamentally unfair. They submitted that the Complainant booked annual leave through the agreed channels on two separate occasions. When the Respondent failed to pay the Complainant for this leave, he raised issue in relation to the same. Rather than investigate this issue, the Respondent engaged in a spurious and ill-founded disciplinary process. The Respondent did not give the Complainant sufficient time to prepare or arranged representative for these meetings and subsequently found the Complainant guilty in his absence.

In light of the foregoing, the Complainant submitted that his dismissal was substantively and procedurally unfair for the purposes of the present Act.

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 evidence, the Complainant outlined a lengthy set of issues that arose during his employment. It appears the initial part of the same was complicated by the onset of the restrictions arising from the Covid-19 pandemic. In such circumstances, the Complainant requested, not unreasonably, that he be assigned outdoor work only. Following the subsequent refusal of this request by the Respondent, the Complainant alleged that his relationship with his employer became somewhat strained.

In this regard, I note that in April 2021, the Complainant received a letter of warning in respect of leave that he submits was approved by management of the Respondent. In circumstances whereby the Respondent did not call a witness to contradict the direct testimony of the Complainant, I accept his evidence in relation to this point. In addition to the same, the Complainant received a further letter of warning in respect of an alleged unauthorised use of a company vehicle. In this regard, it is apparent that the Respondent did not seek the Complainant’s views or input regarding this issue, simply finding against him by means of correspondence and subjecting him to an undoubtedly illegal €100 deduction from his wages. These issues seem to have come to a head in June and July of 2021. Here, the Complaint stated that he booked annual leave via means of an app provided for this purpose by the Respondent. It appears that for some reason, this app did not properly record the requested leave, and the Complainant was twice treated as being absent without leave on his return. At this point the Complainant stated, not unreasonably, that he has “had enough” and requested that the Respondent pay all outstanding wages prior to his return to work.

Following a conversation in the respect, it is apparent that the HR Manager of the Respondent elected to invite the Complainant to a disciplinary meeting in respect of the numerous issues that had arisen during his employment. Curiously, the first of these allegations related to the Complainant’s request for outside work during the restrictions arising from the Covid-19 pandemic. In this regard, this allegation relates to an issue that arose over a year previously. In addition to the same, the Complainant was at all times within his rights to request that the Respondent make a reasonable accommodation in respect of a medical issue. In this regard it is difficult to comprehend how such a request might form the basis of a disciplinary sanction over one year later. The next allegation relates to the Complainant’s “attitude in respect to your unavailability to attend work”, without any further clarification as to what, in particular, this allegation relates to. The final allegation is even more vague in nature, relating to “your constant questions of the rationale of decisions you have previously accepted and then changed”. This allegation does go on to list a purported example of this alleged misconduct, however having reviewed the same it is not apparent how the example listed relates to the allegation.

Notwithstanding the foregoing, these matters proceeded to disciplinary hearing without any form of investigation being undertaken by the Respondent.  From the correspondence being opened, it is apparent that the HR Manager took the view that these allegations could potentially constitute gross misconduct without seeking the Complainant’s explanation for the same by way of an investigation meeting.

Notwithstanding the same, I note that the Complainant did not attend the disciplinary meeting as scheduled and did not appeal the sanction of dismissal thereafter. In the normal course, a Complainant’s failure to attend a disciplinary meeting, or to appeal a sanction of dismissal, would serve to significantly undermine, if not entirely defeat their complaint under the Act. However, in the present case it is apparent that the process adopted by the Respondent was so fundamentally flawed and so ill-conceived that the Complainant’s decision to remove himself from the process was understandable in the circumstances.

Having regard to the foregoing, I find that the disciplinary process adopted by the Respondent was fundamentally and irrevocably flawed from the outset. In addition to the same, in the event that the allegations against the Complainant were more precise and specific, the subject matter of the alleged wrong-doing could not form reasonable grounds for dismissal.

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 totality of the evidence presented, I find that no reasonable employer would have dismissed the Complainant in the circumstances. As a consequence of the same, I find that his dismissal was unfair for the purposes of the present Act.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard, I note that the Complainant outlined in evidence that he experienced significant difficulty in securing appropriate alternative work and consequently accrued significant losses as a result of his dismissal. In answer to a question posed by the Adjudicator, the Complainant accepted that he had experience in a trade that remains in high demand. Notwithstanding the same, the Complainant stated that he experienced difficulty in finding work in this area. In circumstances whereby the Complainant failed to provide supporting evidence of the mitigation of his losses, I find that he has not made sufficient efforts to mitigate the same in accordance with the requirements set out in the Acts. Having regard to the Complainant’s evidence in respect of mitigation of losses, I award him the sum of €5,000 in compensation.

Dismissal, Investigation, Allegations, Appeal