Complainant

Respondent

Parties

Grzegorz  Wasilewski

Rcps Property Services Ltd

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-00054229-001

19/12/2022

Grzegorz Wasilewski, the complainant, was dismissed on August 26th, 2022.

This followed a verbal complaint from a customer, the owner of another maintenance company. She followed this with a written complaint.

He complains that he was unfairly dismissed.

The complainant and another member of staff were to attend to a property in Arklow. They were to meet Diane Kelly, the customer there, and change locks in the property, and then return the keys to our office or give them to the customer on site.

Our vehicles have trackers on board, so we can check when our staff reach work sites, and what time they leave. This helps with tracking labour costs for invoicing and staff locations if emergency work needs to be done.

In making her complaint to Robert Cummins, the respondent Managing Director. Ms. Kelly began by saying that she had not wanted to make the call, but as a fellow business owner and employer, she would have wanted to be informed if the position was reversed.

She outlined that the job was to change locks in a property that was occupied, but that the existing tenant would be moving out by prior arrangement. On arrival on site, she asked our staff to wait in their van until she had spoken to the tenant.

In due course, the tenant left the property and Ms. Kelly told the complainant and his colleague to proceed with the lock change. She photographed the property for the information of the owner and noted that our staff seemed to be following her around.  She had not requested this, but for a while she ignored it.

When she finished, and was preparing to leave the site, the complainant and his colleague seemed to delay leaving the site. Both then went upstairs to check if the water was drained down completely.

After a few minutes, when they did not return, Ms.  Kelly went up after them and found items taken out of the wardrobe, which she could ascertain from having taken the photographs earlier. They asked what would happen to the items and were told the tenant would be returning to collect anything that was wanted, and the rest would be disposed of.

Ms. Kelly told both staff to come downstairs, as the job was finished, and they slowly and reluctantly did so but still did not leave the property. She asked for the new keys and gave one back to our staff and instructed it to be given to the respondent MD on their return to the office. Ms. Kelly told them she had to lock up and be the last person to be inside.

the complainant and his colleague left slowly, and Ms. Kelly locked the property. She then sat in her vehicle and sent reports back to her own office. When she was leaving, she noted that our van was still on site. She stopped for a coffee in the area.

However, she felt there was something not right and returned to the site. Our van was still parked but our staff were not inside in. The property door was open.

Ms. Kelly entered the property and found the complainant and his colleague upstairs, the complainant in the attic and the other member of staff in the bedroom. There were several items at the front door, that had not been there in the photos. It appeared that the employees were in the process of removing these items.

She instructed both to leave. the complainant left and stood outside the door.

Our other staff member had to be repeatedly told to leave and was told the Gardai would be called if he did not do so.

Ms. Kelly got into her vehicle to leave. She was speaking to her business partner for a few minutes and noticed our vehicle stall had not left. She walked back to our van, to the driver side and told the complainant’s colleague to leave. Again, she had to say the Garda would be called if they did not leave, only then did the colleague start the van and drive away.

At this point Ms. Kelly rang Mr. Cummins and told him of the incident. She said she never wanted to work with these members of our staff again and was very shaken by the whole matter.

It took an hour for our vehicle to return from Arklow. During this time Robert Cummins checked the information available on the tracker, listened to Diane and asked questions. He rang the two employees and told them to return to the office.

On their return, Mr. Cummins went outside to tell both staff to come to his office. Both staff were reluctant and tried to continue as a normal day. Robert had to insist they come to the office.

Both employees were asked what had happened on the job site. They seemed to feel that removing another person belongings from the property was not an issue.  They were told that their actions represented gross misconduct and were given a printout regarding this from the staff handbook.

Our work involves a huge level of trust as we work in other people’s homes and businesses. We cannot employ staff that we cannot trust.

The employment of both employees was terminated, and both were told to return the company items in their possession. Their final pay was on the 29/08/2023. Attempts to resolve the matter at a WRC mediation were not successful.

Evidence of Robert Cummins was given on affirmation.

Mr. Cummins confirmed in his evidence the narrative set out above. As he understood it from Ms. Kelly, she had given the complainant and his colleague the keys and they returned to the property contrary to the respondent ‘s clear policy. The other employee was seen going through the property.

When he was contacted by Ms. Kelly and given her account of what happened he instructed the two employees to return to the office and when they did, he told them that what they had done was gross misconduct and they were dismissed.

The complainant had responded that they had done nothing wrong but did not dispute that they returned to the property, as far as the witness was concerned it was the simple fact that they returned to the property contrary to procedure that was the issue giving rose to the termination.

There had been an incident some weeks earlier when the witness had to speak to the complainant about the importance of not returning to a property in these circumstances.

Ms. Diane Kelly gave evidence on affirmation.

She also runs a property management service.

On the day in question the respondent van pulled up at the property. She asked the two employees to wait outside. Then they changed the locks on the building. She told the complainant that if they needed to use the toilet facilities they should do so then.

She then felt that the complainant and his colleague were lagging behind. But then the witness took the new keys and gave one to be returned to Mr. Cummins.

The witness told the two workers that she would have to be the last one to leave the building and that the previous tenant had twenty-one days in which to reclaim any property that had been left in the building.

At this point the complainant’s company vehicle was about twenty metres from the house and the witness was standing outside it.

She went to get a coffee and then notices that the van was still at the property.

She went back to check and discovered that the front door was closed but not locked. She discovered that both were upstairs, and that the complainant was in the attic. She was told that they had been checking the windows.

The witness told them to leave. The complainant did so but his co-worker did not. She asked then directly what they were doing and got a response from the co-worker that she was over-reacting. She asked about a missing camera, and they started coughing.

The witness then asked for the key she had given them for Mr. Cummins to be returned to her. She said she was very shaken by the event and had to ring her husband for support.

She told both the complainant that she would ring the Gardai and they both left. At that point she telephoned the respondent.

In response to a question as to whether the complainant was within earshot when she said that she had to be the last one to leave she said that she thought he was.

The complainant said that he was working on the house in Arklow changing the locks on three doors in the property when Miss Kelly arrived to give instructions on which locks were to be replaced. His co-worker changed the three locks and the complainant given the tools to do so and he was engaged, and that the complainant went upstairs to the attic with Miss Kelly.

The complainant’s coworker found a fishing net in the attic, and he asked the lady Miss Kelly if you could take the fishing net and she said he could.

When the work was completed Ms. Kelly gave him the keys and told him to return them to his manager.

She took a selfie picture with the two of them and give them a tip. Miss Kelly then departed.

After lunch they returned to the property to use the toilet and then Miss Kelly returned. They told her they needed to use the toilet and take pictures of the locks.

However, she started shouting at them and saying we will try to steal something from the house. She said she did not believe us and took the keys from her from him and told us leave the property.

They returned to the work yard and the owner took them to the office and asked for the keys of the van.

This took place in a public place in front of the other staff in the office. The owner’s wife gave him the documents related to misconduct and he says he was unfairly dismissed and accused of stealing. He finds you employment after a few days but at a reduced rate of income.

The complainant gave evidence on affirmation (via an interpreter who also affirmed).

He confirms that he arrived at the property in our club and was told that if the tenant did not show up the locks will be changed. He accepts that he did go back into the house and said that he did not hear Miss Kelly telling him not to go back into the property.

The complainant said he did not hear Miss Kelly say that she that they should not go back into the property. He accepts that they did go back into the house, but he was not on the ladder as claimed in this Kelly within the second time. He thought there was no reason not to do so.

He thought he was allowed to use the toilet.

Regarding the termination of his employment, he said he got a phone call telling him to return to the office. Honest return he went upstairs and was told to give back his keys. He said he wanted to explain what happened, but he was not allowed to do so. He was shocked by the decision to end his employment as he only wanted to go to the toilet. However, the managing director said he did not believe in. The entire meeting lasted between five and ten minutes.

He confirmed that he got a media deployment but at a lower rate than he was paired with the respondent for the opportunity to learn more through working on Saturdays.

There are some discrepancies in the accounts given by the parties in the narratives above.

Ultimately the complainant accepted that he did return to the building although the evidence of Ms. Kelly was that she told both employees that they were not to do so.

She could not be certain that the complainant heard her but on the basis of the evidence of the respondent MD this issue had been the subject of an exchange between them some weeks earlier and I am in no doubt that the complainant understood that he should not go into a property again once the locks had been changed etc.

In general, Ms. Kelly’s evidence was credible and persuasive. Her description of the event added up to a quite uncomfortable experience for her, attributable to the conduct of the complainant and his co-worker.

While the complainant may have been less at fault than his co-worker in respect of some of the detail (for example Ms. Kelly’s evidence was that the co-worker had been closer to her when she issued the instruction not to return and I am satisfied that he heard her), the central issue was the return to the property and in that regard I have no doubt that the complainant knew that this was entirely impermissible.

That is the basis on which his employment was terminated.

However, as will also be clear from the above, there is not the slightest indication of compliance by the respondent with anything resembling a fair procedure in terminating the employment. There was a rush to judgement, and it was done in a peremptory and entirely unfair manner.

There was no opportunity for the complainant to have his version of the event heard; indeed, he was positively denied the opportunity to do so.

There was no fair procedure, or hearing of which he was on proper notice and no opportunity to offer whatever explanations or mitigation he wished to present.  There was a presumption of guilt which is the antithesis of what fair procedure is supposed to be.

Accordingly, it is not difficult to conclude that the dismissal was unfair and in breach of the Act.

The complainant made a very substantial contribution to the situation. I am satisfied that he deliberately returned to the vacated property knowing well that this was a breach of a quite significant company rule.

I also take account of the fact that he secured employment relatively quickly, although he says at a reduced wage. However, the level of reduction is such that, having regard to his conduct in the matter, I do not consider it fair and equitable to fully compensate for these losses and my award reflects that.

For the reasons set out above complaint CA-00054229-001 is upheld and I award the complainant €750.00

For the reasons set out above complaint CA-00054229-001 is upheld and I award the complainant €750.00

Dismissal, compensation.