Complainant

Respondent

Parties

Kenneth  Malone

Cerlock Ltd

Representatives

 Dundon Callanan LLP Solicitors

 O'Gorman 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-00052736-001

09/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052736-002

09/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00052736-003

09/09/2022

The Complainant submitted three complaints. He alleged he was unfairly dismissed on both substantive and procedural grounds, did not receive a written statement of his terms of employment and did not receive breaks in line with the legislation and worked unsocial hours.

The Complainant worked as a barman in a pub in Limerick for over seven years for the Respondent. He was never provided with written terms of employment.

On Monday, 18th July 2022 he was approached by Lee-Anne Graham, the Owner of the Respondent who implied that he was "on the drink" and that she had video footage of him coming out of a cold store with some empty cans and she terminated the Complainant's employment and asked him to leave the premises which he did. The Complainant was very upset by this. He wasn't paid for the rest of the week.

The Complainant delivered by hand a letter to the Respondent dated 25th July 2022 referring to the termination of his employment without any prior warning or discussion and pointing out that he had been unfairly dismissed from his job. The Complainant also noted that he had not been provided with written terms of employment or holiday pay or notice and that he had not received proper breaks or rest periods over the years when he was working, nor had he been supplied with payslips.

The Complainant referred to the fact that he had been invited to a "disciplinary meeting" on Wednesday with the company's accountants but advised that he was not sure what the purpose of such a meeting was, given that his employment had already been terminated and, in the circumstances, he advised that he would not be attending the meeting which was no more than "window dressing" after the event.

The Complainant did not receive any response to this letter. In point of fact the Complainant did not receive anything at all by way of written correspondence from the Respondent pertaining to the termination of his employment, any applicable procedures, rights of appeal of any such decision or anything to clarify and explain why in fact he had been terminated. There was an obvious lack of any procedures surrounding the dismissal fair or otherwise. The termination was neither fair nor proportionate.

By letter dated 12th September 2022 the Complainant's solicitors wrote to the Respondent advising that the Complainant had been unfairly dismissed and referring to other matters. No response was received to this letter.

The Complainant is aware that the WRC carried out a subsequent investigation with regard to his complaint that he had not received payslips during the course of him employment. The Respondent asserted that payslips had been provided to the Complainant during the course of his employment, but this is incorrect. The Complainant did not receive any such payslips during the course of his employment.

The Complainant has since the termination of his employment been provided with copies of the payslips which the Respondent alleges and that he received during the course of his employment from the WRC investigation.

These payslips are completely incorrect in terms of the hours which they purport to show that the Complainant worked and appear to have been constructed "after the event". The payslips reflect for the period 22nd November 2021 to 17th July 2022 450 hours work. During this period, the Complainant was rostered for a total of 1,125 hours work and was compensated accordingly. In such circumstances, it is clear that the payslips which have been provided after the event to the Complainant and the WRC investigation are incorrect and do not reflect the hours worked by the Complainant.

The Complainant never received written terms of employment during the course of his employment. The Complainant has been unfairly dismissed from his employment in circumstances where no procedures whatsoever were observed by the Respondent in effecting the termination of employment of the Complainant. The payslips that the Complainant has been provided with after his employment ended are grossly understated and do not reflect the hours in fact worked and paid for by the Complainant and there are no records available as far as the Complainant is aware to show that the Respondent complied with its requirements pursuant to daily rest periods, rest and intervals at work, weekly rest periods, Sunday working, nightly working hours, or otherwise pursuant to the Organisation of Working Time Act, 1997.

The Complainant sought appropriate compensation.

Complaint Ref. CA-00052736-001 – Unfair Dismissal.

The Complainant had been employed as a Barman with the Respondent Company since in or around October, 2015. Prior to the Complainant’s suspension on the 18th of July 2022, he had been issued with previous verbal and written warnings, most recent of which was a final written warning on the 15th of February 2022 informing him of the need to improve his performance, particularly productivity at work and attending for work and if this was not done, further disciplinary action may be implemented. The Complainant admitted that he had an alcohol issue. The Respondent, LeeAnn Graham contacted his brother as she was concerned for his wellbeing. The Complainant agreed to attend his Doctor and avail of the appropriate treatment.  The Respondent asked the Complainant to take whatever time off work was required and he agreed to this.  

The Complainant returned to work approximately two weeks later and it was around this time that Lee-Ann Graham was diagnosed with cancer. She required urgent medical treatment and entrusted the day to day running of the business to the Complainant.

On returning intermittently to work in or around July of 2022, Lee-Ann Graham was informed by a number of customers that the Complainant was drinking while at work.  Lee-Ann Graham reviewed the CCTV footage from the premises which confirmed the information she had been given.  Lee-Ann Graham told the Complainant what she had seen on the CCTV footage, which he did not deny.  She explained that she would have to suspend his employment pending a disciplinary meeting which was scheduled for the 27th of July, 2022. The Complainant was notified verbally, by text message and by letter of the disciplinary meeting, which he refused to attend. The findings of the disciplinary meeting were furnished by letter dated the 28th of July 2022 to the Complainant whereby his employment was terminated due to gross misconduct during the course of his employment.     The letter also informed the Complainant that he was prohibited from entering the company’s premises, as a result of his threatening and criminal behaviour towards the Respondent, its property and staff members which were subject to ongoing investigations by An Garda Síochána.  The Respondent relied on the following:-

At all times during the investigation/disciplinary process, the Complainant was given prior notice and refused to engage.

The Complainant was made aware of the allegations against him at the outset of the process.

The Complainant was given an opportunity to answer the allegations made and refused to do so.

The Complainant was provided with the right to attend the disciplinary meeting and refused to do so. 

The Complainant was aware of his right of Appeal against the sanction of dismissal.

The disciplinary process was completed in a fair and transparent manner.

The Complainant was aware of the company’s disciplinary and dismissal procedures which were followed by the company throughout the investigation and the disciplinary process. The Complainant’s suspension occurred after an initial investigation had taken place and necessary to prevent a repetition of the conduct complained of, interference with evidence and to protect other employees. It was also necessary to protect the Respondent’s business and reputation where the conduct had already been noted by customers. The Respondent’s response meets the legal test as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of the Bank of Ireland v James Reilly (2015 IE HC 241) whereby the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned. The legal test (the “band of reasonable responses” test) was also applied in the case of Looney & Co. Ltd. v Looney (UD843/1984) in which the WRC concluded that any employer faced with similar circumstances to those that pertained to that case would have acted in the same way. This principle was also applied in a further case before the WRC Paul Gary Dixon v DFS Normal Trading Ltd. (ADJ-00030253) which also highlights a number of considerations in cases were a Complainant brings a claim for unfair dismissal following their termination of employment for gross misconduct. The WRC concluded that the dismissal in that case of Mr. Dixon was both procedurally and substantially fair and the decision to dismiss Mr. Dixon was within the range of reasonable responses of a reasonable employer.

2.Complaint Ref. CA-00052736-002 – Terms and Conditions of Employment, Section 7 of the Terms of Employment (Information) Act, 1994.

The Respondent produced a copy of the Complainant’s contract of employment which was not signed by the Complainant.   The Complainant was well aware and acknowledges the existence of his contract of employment and requested this by text message from the Respondent’s Accountant on the 20th of July, 2023.  

Complaint Ref. CA-00052736-003 – Hours of Work – Complaint under Section 27 of the Organisation of Working Time Act, 1997.  

This matter is already subject to an investigation and notification of contraventions as against the Respondent under WRC Ref. INS – D59OYD with an inspection having taken place on the 25th of January, 2023. 

The Complainant received payslips, copies of which have already been furnished, and also acknowledged in communication from the Complainant (however this is not an issue in these Complaints).

The Complainant commenced employment in 2015 and his employment was terminated on the ground of gross misconduct on July 29th 2022.  The complaints were submitted to the WRC on the 9th of September 2022.

Complaint under the Terms of Employment (Information) Act 1994

The Complainant lodged a complaint that he did receive a written statement of his terms of employment in breach of the Act.

The Law;

At the commencement of the hearing the Respondent in its submission presented to the Hearing a contract of employment relating to the Complainant. The Complainant denied ever receiving this document and stated he only saw it for the first time at the Hearing. The contract included a date at the top of the letter of “October 2015” with a start date of July 20th 2020 and an incorrect job title of Driver/Salesperson. No signed version of the contract was produced by the Respondent. Prior to the hearing of the substantive complaint of Unfair Dismissal the Adjudicator required the Complainant and the Respondent to give evidence on affirmation on the issues this raised. Ms. Graham stated the contract of employment was given to the Complainant and attributed the mistakes in the contract to her Accountant. Mr. Malone denied ever having seen the contract until it was produced at the Hearing.

As the complaint was lodged outside of the statutory timeframe of six months the complaint under the Terms of Employment (Information) Act1994 must fail. However, of significance from this evidence is the parties were operating without an agreed written contract as the amount of errors in the unsigned contract submitted by the Respondent and the denial by the Complainant, under affirmation, that he never received the contract leads me to conclude that this was not a valid contract.

Complaint under the Unfair Dismissals Act 1977

The Law.

“6.1. 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) the capability, competence or qualifications of the employee for performing work of a kind which 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 continue to work in a position which he held without contravention by him or by his employer of a duty or restriction imposed by or under any statute or instrument under statute.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her submissions” listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

The Complainant was running the pub for a few months for the Respondent, who unfortunately was out of work at the time due to personal illness, Ms. Graham stated in evidence that she received some complaints from customers that the Complainant was drinking at work and she decided to review the CCTV footage of the premises. She stated she saw on the CCTV the Complainant go into a store room and come out of it with an empty can in his hand and throw it in the bin. Ms. Graham alleged that the Complainant was drinking in the store room. Ms. Graham stated she saw the Complainant drinking with customers on video and this was a ground for dismissal. Mr. Malone, in his evidence, denied drinking in the store room.. When asked by the Adjudicator had he been shown this video Mr. Malone stated it was never presented to him at any point. Ms. Graham confirmed the videos were not shown to the Complainant at any time The Respondent was given the opportunity by the Adjudicator to submit the videos post the hearing.

In summary, the Complainant was dismissed for allegedly drinking on the premises based on a review of CCTV footage by the Respondent, the Complainant denied drinking in the storeroom, the Complainant was not shown this video at any time up to his dismissal and the videos were not produced in evidence at the Hearing. The Adjudicator has an investigative role to try establish the facts in an employment law case and requested that the videos be sent to him and the Complainant representative for viewing. The Adjudicator was able to view the videos in late July.  The Complainant Representative objected to the videos being seen by the Adjudicator as they were not produced to the Complainant as part of the disciplinary process or in evidence at the WRC hearing. The Adjudicator decided, using his investigation role, that as the Complainant was dismissed on foot of what the Respondent saw on the video it was essential for him to view them to evaluate the substantial issue in dispute, the allegation of gross misconduct by the Complainant. On reviewing the videos post the Hearing, the Complainant representative stated that times and dates on CCTV footage can be changed and the CCTV was not properly proved by relevant experts for it to be constituted as evidence. While maintaining his preliminary objection to the videos being considered by the Adjudicator, the Complainant Representative argued that any video showing the Complainant smoking on the premises (which it did) should not be considered as the Complainant was not dismissed for this and that the Respondent was well aware smoking took place on the premises after hours. I agree with the Complainant Representative that this issue is not relevant to the complaint as the Complainant was not dismissed for smoking on the premises. The Complainant Representative argued that any video evidence produced post Hearing which alleges to show the Complainant at work on July 9th 2022 cannot be right. The Complainant Representative provided rostered hours which showed that the Complainant was not at work between July 4th 2022 and July 10th 2022. The Complainant Representative also made the point that the times on the video (albeit still contested on accuracy of the date) were when the Complainant had finished work. The assertion that the Complainant was not present on July 9th evidence was contested by the Respondent Representative and they argued that the Complainant was in charge of the roster for that week and that he was present and that the dates on the video were accurate. They also argued that they were not asked to provide expert analysis of the dates and times on the videos. It is important to note that the allegation of the Complainant drinking a pint at the bar counter mainly occurred around closing time and with very little or just one customer in the bar.

On my review of the videos, the Complainant can be seen on very few occasions having a drink in the bar, sometimes on his own and sometimes with customers. My assessment is the video of the Complainant coming from the store/off licence with a can in his hand is inconclusive that he was drinking in the store.

In considering whether a dismissal was fair or unfair an Adjudicator is required to evaluate the substantive issue that lead to the dismissal and the procedures used to dismiss an employee. Failure to have good grounds for dismissal and/or failure to use proper procedure can lead to an unfair dismissal conclusion. On the substantive issue it is clear from the evidence on video that the Complainant did pour himself a drink on occasion and joined customers with his drink. What is more important is the videos were never shown to the Complainant at the time of dismissal by the Respondent and he was given no opportunity to give his version of events. The Video was not produced at the Hearing, an action one would think was essential to support the Respondents version of events. I have to conclude that, overall, the videos can’t be relied upon to support the Respondents version of events. The fact that the videos were not shown to the Complainant at the time of his dismissal and not produced in evidence at the Hearing to give the Complainant and his Representative the opportunity to challenge their veracity supports this conclusion. The fact that the Respondent was relying on the videos to dismiss the Complainant and did not give him the opportunity to review them and give his version of events is critical to this case. I am also not convinced that the videos would have been shown to the Complainant at the disciplinary meeting, if he had attended, given there were not produced at or ready for the WRC Hearing. 

Ms. Graham stated in evidence that she gave the Complainant a verbal warning and a final written warning for other issues prior to the dismissal (the version produced to the hearing was unsigned) and stated the signed version was given to the Complainant in the pub on February 15th 2022. Mr.Malone denied he ever received a final written warning. What is important here is whether or not the Complainant was on notice of any serious disciplinary  issues prior to his dismissal, It is the Respondents duty to maintain these signed records and to have them available to support their case. I cannot accept a contested and unsigned version of a final written waring as evidence.

Ms. Graham stated the Complainant was invited to a disciplinary meeting regarding the videos viewed (no evidence of the invitation was presented to the Hearing) and when he did not appear at the disciplinary hearing, a dismissal letter was sent to him. Mr. Malone denied in his evidence ever seeing this document.

It was confirmed that the contract of employment was not signed by the Complainant. The Respondent was seeking to rely on this document to support its claim of a fair dismissal. As the contract of employment dated 2015 was never signed by the employee and constituted a change to the original contract of employment which the Respondent stated at the Hearing she had given him in 2015 (but failed to subsequently produce despite being given the opportunity to do so) the contract dated 2015 has no legal validity. Ms. Graham stated their disciplinary procedures were available to the Complainant in the office.

The onus on an employer to keep accurate records is high during a dismissal process.  Producing a contested and unsigned contract of employment and final written warning to a WRC Hearing naturally leads to its veracity being examined.

Mr. Malone stated he was dismissed on June 29th 2022 by Ms. Graham in the presence of her partner when she came into the pub approximately at 10am and dismissed him. Ms. Graham stated in evidence that she only suspended the Complainant that day and he was invited to attend a disciplinary meeting three days after. No evidence of the invitation letter was presented. Mr. Malones evidence was that he was notified by Ms. Graham of this meeting by text and there was no mention in the text that the meeting was to discuss his dismissal and the text did not advise the employee to bring a representative or other person to assist him at the meeting. The Complainant did state he sought legal advice on the issue and was told not to attend the meeting. The Complainant understood from the interaction three days before that he was dismissed and saw no merit in attending the proposed meeting.

On the letter of dismissal, it contained many other serious grounds relating to the Complainants behaviour. Mr. Malone denied these behaviours and believed they were concocted and bore no resemblance to the truth. Mr. Malone advised the hearing that he was never contacted by the Garda on any of these issues mentioned by the Respondent in his letter of termination and had not been charged on any of the issues. The Respondent could not produce any evidence to the contrary. As the Respondent set out these issues in the dismissal letter as grounds for the dismissal there was an obligation on the Respondent to prove these allegations to the dismissal meeting and the WRC Hearing (and of course give the right to the Complainant to defend himself against them). There appears to be no mention in advance of the Disciplinary Hearing of any of these allegations and there was no evidence to prove them given to the WRC Hearing.

With regard to the procedures used by the Respondent, the Respondent did not show the Complainant the videos on which she made her decision to dismiss.  There were no written statements from customers about the Complainant and therefore the Complainant had no opportunity to question the veracity of the allegations. The Respondent stated that, for personal reasons, she was not attending the premises at the time and this was denied by the Complainant. The investigation, as such, was conducted by same person that decided to dismiss thus making her the accuser and the investigator. An independent investigation should have been conducted by another appropriate person The meeting set up with the Respondents Accountant three days later seems a convenient rethinking by the Respondent to try satisfy proper procedure.. There was no notice that dismissal was a consideration in a letter presented to the Hearing. There was no letter presented giving the Complainant the right of representation at the proposed disciplinary meeting.  There was no right of appeal mentioned in the dismissal letter.

The Complainant had legal advice not to attend the disciplinary meeting and did not attend the disciplinary meeting. There was no evidence of any Garda complaints and the Mr. Malone confirmed in his evidence that there had been no contact by the Garda with him on the alleged issues at the time of the Hearing. There was no evidence of prior warnings on these allegations.

The Respondent went into significant detail regarding the Complainants personal history and issues. I do not consider it necessary or appropriate to elaborate on the detail of this in this Decision as it does not significantly impact the core issues.

My overall conclusion is that the Respondent has not proven that the Complainant was drinking in the storeroom/off license as alleged and that while, he can be seen to have a drink or two at the bar counter the CCTV footage is not 100% reliable that this was gross misconduct and not “one for the bartender” at the end of a shift. The failure to show him the videos which the Respondent relied upon to dismiss the Complainant is critical in this case. Having considered all the evidence and submissions my finding is the Complainant was unfairly dismissed both on substantive and procedural grounds.

In any complaint an Adjudicator has to look at the specifics of the evidence but also take a “rounded” view of events. In this case there is an issue if the Complainant ever got a contract of employment, if he ever got a verbal or written warning prior to his dismissal, was not shown the evidence on which he was accused of gross misconduct, the CCTV was not presented to the WRC Hearing, there is no proof he was drinking in the storeroom (he can be seen throwing  can into a bin), believes he was verbally dismissed and then a disciplinary hearing “arranged” three days later, the invitation to that meeting was contested as being ever received in the format given, the dismissal letter included a whole list of issues which were not presented to the Complainant at the time of his dismissal and none of which were supported by evidence at the WRC Hearing, he was not given the right of representation at the disciplinary meeting and was given no right of appeal. Basically, it is a catalogue of all the things you should not do to support a claim that someone was dismissed fairly.

The Complainant alleged his loss amounted to approximately 12,000 Euros and he had attained a small few part time jobs which he detailed. This was contested by the Respondent and they questioned what efforts by the Complainant were made to seek employment and whether income from other possible employments/benefits were included. The evidence on this issue was slightly inconclusive and I have taken the Respondents Representatives views into account and decided that the Complainants loss should be reduced by 25% to allow for these factors and the appropriate compensation is 9,000 Euros.

Complaint under the Organisation of Working Time Act 1997

There was no real evidence provided by either party on the specific complaint that the Complainant did not receive his proper entitlement to breaks and that he was required to work long and unsocial hours. Based on his payslips the Complainant did not work many hours every month.  Based on the Complainants submission he worked approximately 37 hours a week. Neither party really gave any conclusive evidence regarding the lack of breaks or unsocial hours. While the responsibility is with a Respondent to show they are in compliance with the Act, in the timeframe involved, the Complainant was running the bar and doing the rosters and therefore had an obligation to ensure he was also in compliance with the Act. Based on the lack of conclusive evidence I have to conclude this complaint is not well founded. .

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 and award him compensation of 9,000 Euros for breach of his employment rights. (ADJ-00052736-001.)

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I find that the complaint under the Terms of Employment Information) Act was submitted outside the statutory timeframe allowed so the complaint is statute barred and is not well founded..  (ADJ-00052736-002.)

I find that the complaint under the Organisation of Working Time Act (1997) is not well founded. (ADJ-00052736-003.)

Unfair Dismissal