Complainant

Respondent

Parties

Darragh  O’Neill

Cctv Direct Ireland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00057691-001

13/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00057691-002

13/07/2023

The complainant commenced employment on 2nd January 2020 earning €899.39 gross per week. His employment was terminated by the respondent on 10th July 2023, and he claims it was an unfair dismissal. His second complaint is that he is owed net wages of €862.50 and a net payment of €1572 for accrued holidays.

Summary of Complainant’s Evidence

The complainant gave evidence that he commenced working with the respondent from 2nd January 2020. There were no issues raised with him during his employment about his performance until he attended a job in Maynooth on 10th July 2023. He received a phone call from his manager, Mr Bell, during course of carrying out a job. He explained to the manager that the job was more complex than initially thought due to the site layout and the cable protector already full of wiring. He received further phone calls from Mr Mc Evoy, who was travelling in a car with Mr Bell. The call ended in a row between the complainant and Mr Bell. He said that this was due to the distraction of the calls when he was trying to get on with the job. He admitted that he did curse at Mr Bell, and this was out of frustration with the number of calls and how he was being treated.

Mr Bell then told him on the phone to pack up the job and leave your sacked. The complainant left the job and returned all the equipment back to the office. There was no one at the office when he returned.

He received a call from Mr Mc Evoy the following day as he wanted to deliver a letter of termination. As he was out, he asked Mr Mc Evoy to leave the termination letter at his home. He understood that Mr Mc Evoy then personally delivered the letter to his house on 11th July 2023. The letter, although not dated, was put into evidence and the direct relevant extracts are-

‘Following your recent change in attitude and team contribution management have been observing your conduct over the past 6 months and have had several conversations with yourself in regard to your attitude towards management.

Unfortunately, on 10/07/2023 during office hours you was called by management in relation to the job in hand, when being told how to do the job your response was “what is wrong with you? You C....! in response to this attitude management do not accept any miss conduct and breech of employment contact.

Management have concluded CCTV Direct no longer require your services due to breech of employment contract which states in section 11.2 with immediate effect as of 10/072023.

Following section 12 notice of termination with instant dismissal no further moneys will be paid to you due to the circumstances set out in Section 13 of the Employee’s employment may be terminated without notice or payment in lieu of notice.’

A few days later, the complainant received a call from the respondent requesting that he go back to his job. The complainant declined the offer as he said it would never be the same due to the way his employment had ended. He was also still owed money which was still not paid.

The complainant gave evidence that when he checked his details on the revenue website, it stated that he had ceased employment two days prior to his dismissal date which he thought was unusual. He wanted to question the respondent on this matter.

The complainant then outlined that he had received a copy of the respondent submissions of 5th November 2023 which included two witness statements from Mr Mc Evoy and Ms Wilkinson. He had pre-prepared questions to ask the witnesses directly based on the assertions made in the documents.

He gave evidence that he is owed one week’s (plus six hours) net wages of €862.50 and a net payment of €1572 for holidays due from the beginning of the year.

The respondent did not make an appearance at the hearing although had made a written submission on 5th November 2023.

Arising from the Supreme Court findings in Zalewski v. Adjudication Officer & Ors [2021] IESC 24, normally evidence is given under oath or affirmation. The WRC guidance allows for the submission of documentary evidence in advance of the hearing. The documents submitted consists of a statement by Mr Bell, Mr Mc Evoy and Ms Wilkinson giving background to the complainant’s employment and particularly what occurred on the day of termination, 10th July 2023. Although documents are helpful to confirm facts, the strength of these written submissions are limited particularly as the complainant was not able to cross examine the respondent on any conflicts of evidence. The respondent is relying on a clause in the employment contract to stand over the dismissal. The respondent also contends that the complainant was offered his job back a few days after the dismissal which was confirmed by the complainant in direct evidence.

Unfair Dismissal CA-00057691-002

The Law

Section 6(1) of the Unfair Dismissals Act states ‘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.’

Section 6(6) sets out the applicable burden of proof: ‘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 (4) of this section or that there were other substantial grounds justifying the dismissal.’

Section 6(7) provides that regard may be had to the reasonableness or otherwise of the conduct of the employer and to compliance with the dismissal procedure required by section 14 of the Act or any relevant Code of Practice.

Application of the law to the facts

Mr Bell’s account of the dismissal does not differ substantially from the evidence given by the complainant.

The statement submitted by Mr Mc Evoy is also very much consistent with the complainant’s description of the telephone call on the day of dismissal. The statement by Ms Wilkinson is no assistance as it contains hearsay statements that I cannot permit in evidence. It is regrettable that the respondent did not attend the hearing to give direct evidence under oath. Matters could have been clarified as the complainant had pre-prepared questions on the respondent’s submission.

Despite the complainant alleging that the revenue website indicated his employment as being ceased two days prior to the actual dismissal date, I am disregarding this assertion on the basis that the respondent has not been heard on this issue and there is insufficient evidence to make a finding.   This could have arisen from an administrative error, or they may be a rational explanation for this.

The respondent did not submit company procedures for dealing with disciplinary matters. In the absence of same, the default is Statutory Instrument No 146 of 2000 which includes the Code of Practice. It states, ‘The employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors and circumstances.’  

To stand over the dismissal the respondent is relying on clause 11.2 which seems to be a clause in the employment contract which states-

‘This agreement may be terminated forthwith by the Company without prior notice if at any time the employee:

11.1 ……..

11.2 are guilty of any grave misconduct gross default or wilful neglect in the discharge of his duties hereunder or in connection with or affecting the business of the Company.’

I find that the events as described on 10th July 2023 do not constitute reasons for an immediate dismissal. The complainant was presented with a fait accompli that his job was terminated without any due process being afforded to him. The Code of Practice has been clearly breached by the respondent.

The respondent is relying on the fact that the complainant was offered his job back within days of the dismissal. Therefore, I need to examine the authorities on this issue.

Before an employee can obtain redress under the Act there must have been a dismissal. The Labour Court in Parkboro Developments Ltd T/a Park Engineering v Mariusz Witkowski (UDD2338) noted:

“There can be no absolute rules about [sic] is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.”

Generally, a person is dismissed when the employer informs the employee clearly and explicitly that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or may reasonably be inferred as having been intended [Redmond on Dismissal Law (3rd ed., Bloomsbury Professional 2017) at 22.13].  

In Parkboro Developments the Labour Court stated that where dismissal was not intended, it is up to an employer “. . . to take immediate and comprehensive steps to assure the complainant otherwise”.

The respondent in this case did not take immediate steps to assure the complainant that he was not dismissed. Indeed, the day after, the respondent made sure that a formal letter was delivered setting out the dismissal in writing and the reasons for same. The wording of the letter is clear. The complainant was left in no doubt that his employment was terminated.

As per the case law, when things are said in the heat of the moment, matters can be retrieved if immediate action follows. In this case, although the complainant was offered his job back, it was too late and any trust between the parties had already eroded.

The respondent did not afford due process or natural justice to the complainant. Apart from the procedural deficits, I have assessed the reasonableness or otherwise of the conduct of the employer on the substantive reasons grounding the dismissal. There were no verbal or written warnings on record so the complainant must be given the benefit that there were no issues with his performance and/or previous conduct. The respondent in the submission refers to previous performance in the submission although there was no evidence submitted to substantiate these claims.

Given what transpired on the phone call, would a reasonable employer have acted the same way in dismissing the complainant there and then? Although this is an objective test, I find that a reasonable employer would not have acted in this manner.

I find that the respondent has not discharged the presumption that the dismissal was unfair.

For the reasons outlined, I find that the complainant was unfairly dismissed.

Redress / financial loss

The complainant has selected the ‘compensation’ option on the complaint form.

I note that the definition of ‘financial loss’ in section 7 provides: ‘… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, ………….’

Of course, an award of redress must be just and equitable, and take account of the conduct of the employee and employer. This is provided for in section 7(1) ‘just and equitable compensation’. Section 7(2) sets out six aspects to have regard to, for example ‘employee conduct’ ‘employer conduct’ etc.

As described consistently by both parties, what took place was a robust and heated exchange with choice language used by the complainant towards the manager. Other than the isolated incident, no other written evidence of poor performance or conduct has been provided by the respondent. Consequently, I do not find sufficient grounds that a reasonable employer would immediately dismiss an employee.

On the complainant’s conduct on the day in question, I find that I cannot contribute blame to a sufficient degree to consider reducing his financial loss due to a contribution towards his dismissal.

In assessing financial loss in this case, I note that the complainant commenced another job on 18th September 2023 which means his net loss is estimated at €3,750.

In assessing prospective loss, the wages in the new job are €350 net less per week even though he expects his earnings to increase over time. I decide that his estimated prospective loss is also €3,750.

Having considered the above evidence, I decide that the appropriate remedy is €7,500 compensation to be paid by the respondent to the complainant.

Payment of Wages CA-00057691-001

The Relevant Law

Section 5(1) of the Payment of Wages Act 1991 sets out the parameters according to which deductions may be made from an employee’s wages:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) addresses the circumstances in which wages which are properly payable are not paid:

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Application of the law to the facts

Payment of Wages

The complainant gave evidence that he is owed one week’s wages along with six hours that he worked on 10th July 2023. The respondent’s submission did not refer to monies due other than providing the copy of the termination letter which stated, ‘Following section 12 notice of termination with instant dismissal no further moneys will be paid to you due to the circumstances set out in Section 13 of the Employee’s employment may be terminated without notice or payment in lieu of notice.’

In assessing what is properly payable, I see no grounds that a clause in a contract can deny payment for work done which would effectively set aside the Payment of Wages Act. I have already decided that the conduct in question did not merit an immediate dismissal.

 I find the complaint well founded and the respondent shall pay to the complainant the net sum of €862.50 by way of compensation for the unlawful deduction of wages properly payable.

Holidays

The complainant gave evidence that he is owed €1572 net for accrued holidays from 1st January 2023. The respondent has made no submission on holidays owed.

Section 23 of the Organisation of Working Time Act 1997 refers to payments for loss of annual leave being due on the cessation of employment. Therefore, as the employment ended on 10th July 2023, this was the date when the payment for accrued annual leave was due to be made and is within the 6-month statutory cognisable period. I am satisfied that 8% of hours worked from 1st January 2023 to 10th July 2023 equates to the value of €1572 net wages.

I find the complaint well founded and the respondent shall pay to the complainant compensation of €1572.

Unfair Dismissal CA-00057691-002

I find the complainant was unfairly dismissed. I decide that the appropriate remedy is €7,500 compensation to be paid by the respondent to the complainant.

Payment of Wages CA-00057691-001

I find the complaint under the Payment of Wages Act well founded and the respondent shall pay to the complainant total compensation of €2,434.50.

Unfair Dismissal, Payment of Wages