Complainant

Respondent

Parties

Cathal  Rooney

B & J Distribution Limited

Representatives

Lauren TennysonBL instructed by Denise Cassidy Solicitors

 Jim Lynch, Director

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-00044686-001

17/06/2021

The Complainant was employed by the Respondent as a Sales Rep since 22 May 2017.  He was dismissed by the Respondent by letter dated the 18 March 2021.  The Complainant’s salary was €25,000 gross per annum with a monthly commission of 2.5%.

The Complainant alleges that he was summarily dismissed without any notice.

Sales training 

Following the Complainant’s appointment as a Sales Merchandiser, he received two weeks training with an Area Sales Manager to ensure he was fully conversant with the procedures required for him to be successful in his position as Sales Merchandiser.  The Complainant was constantly supervised, as are all of the Respondent’s Sales Merchandisers, and received further training as and when the Respondent felt this was required. 

In spite of the training he received, the Complainant constantly deviated from the procedures he was trained in and was spoken to by his Regional Area Manager on several occasions, who in turn asked a Company Director, based at the Respondent’s Head Office in Birmingham, for some guidance on this matter as the Complainant was not taking any notice of his instructions and was undermining his authority. The Company Director contacted the Complainant several times to offer guidance and help in what he was constantly doing wrong.  However, due to Covid 19 this could only be done by telephone as the Company Director could not travel to the Respondent’s Office in Dublin to have a face to face meeting with the Complainant. Following this, the Complainant claimed that he was being bullied by his Regional Area Manager and the Director both of whom were only endeavouring to help the Complainant. 

B&J Toys employee contract 

Each employee receives a contract following a 3 months probationary period.  The Complainant had his contract posted out to him on two different occasions from the Respondent’s Irish office and copies were also left in his lock-up.  Despite repeated requests for the Complainant to sign and return his contract, he did not do so.  The Respondent believes that the Complainant received his contract as he would contact some of the other Sales Merchandisers to compare contracts with them.

Bullying allegations meeting

A telephone meeting was arranged by the Regional Area Manager with the Complainant for 21 January 2021.  Following the meeting, the Complainant stated that he was “looking forward to putting all this behind him and moving on”.  The Complainant also confided that his wife had advised him to retract an e-mail he had sent the night before.  The Regional Area Manager was in agreement with this. It was also agreed that then there was no need for a zoom call with the Director. 

Daily reporting procedures

All sales Merchandisers make a daily report to either an Area Manager or to Head Office in various formats depending on the relevant information required to keep their journey running successfully.

It was agreed that to help the Complainant with his daily reporting procedures and that rather than him reporting to the Regional Area Manager, who he was no longer comfortable reporting to, that he would report to Mr Jim Lynch, a Company Director, with whom he already had a good relationship and to whom he had reported previously. 

All Sales Merchandisers, including the Complainant, have a journey list to follow in numerical order. No calls should be skipped and all calls require a visit to establish what their requirements are.  By having the Complainant report to him, Mr Lynch was able to see where the Complainant’s journey needed extra customers to eliminate any “no service calls” and to ensure that every customer had a visit each journey cycle and that no calls were skipped.  The Complainant would constantly deviate from the journey route without advising anyone, the result of this meant that many customers did not get a visit leading to a loss of some customers and resulting in a loss of revenue to the company. It was also found that the Complainant was falsifying customer’s signatures when he had made errors in store and would adjust this against another customer’s details which could have led to the company losing the Respondent’s listing with the various buying groups that it was dealing with.   This could have led to the loss of several hundred customers and the loss of several jobs within the company.

End of day reporting 

All Sales Merchandisers contact their Area Manager or Head Office after their last call of the day to give their daily report and receive any relevant information for the following day’s work e.g. any customer requests for stock, etc.  On several occasions the Complainant would not call Mr Lynch until he had arrived home when it was then too late to give the Complainant any information that had arrived in the office that day. On one particular occasion the Complainant phoned Mr Lynch as he was driving home with the intention of reading his report whilst driving from his last call which he had admitted to. Mr Lynch terminated the call as he did not want to be the cause of an accident.

Exchanges within stores

The Complainant constantly made errors not only on the exchanges but also on which customers he was charging for seasonal units to cover his errors.  This was when the Complainant would use another customer’s details and sign the docket himself rather than having them signed by the customer. As previously stated, this could have resulted in loss of revenue and loss of the Respondent’s customer base resulting in loss of jobs within the company.

It was also found that the Complainant had stolen an amount of €100 from the company, having taken a payment of €400 but only banking €300. This was only found out when the Respondent was shown the payment receipt by the customer. When questioned regarding this matter the Complainant admitted to the theft and was advised that the Respondent would be informing the police. The Complainant stated that he would pay the money into the Respondent’s account as long as no action was taken.   The Complainant has since repaid this amount.

Direct evidence of Mr Jim Lynch

Mr Lynch confirmed that the Complainant reported to him and that, at the beginning, everything went well.  The Respondent said that an issue arose with how the Complainant was managing credit notes and invoices which could have caused a huge loss to the Respondent. 

Mr Lynch confirmed that no written warnings were given to the Complainant.  Nor was he placed on an Performance Improvement Plan (PIP).  Mr Lynch could not remember exactly when the Complainant’s performance deteriorated.  He said that he tried to give the Complainant as much support as possible.

Mr Lynch said that he found out that the Complainant had collected a payment of €400 from a customer but only banked €300.  Mr Lynch said that this only came to light because of the checks that the Respondent carried out.  Mr Lynch confirmed that the Complainant owned up to what had happened and that he put it right.  Mr Lynch said that when this happened, he decided that the Complainant’s employment had to be terminated for gross misconduct on the grounds of theft.

Mr Lynch spoke to the Regional Area Manager and asked him to take responsibility for terminating the Complainant’s employment.  The Regional Area Manager went to the Respondent’s sub-unit near the Complainant’s home and met him there.  Mr Lynch said that that the Respondent paid all outstanding monies that were due to the Complainant. 

Cross examination of the Respondent by the Complainant’s Counsel, Ms Tennyson

In response to a question from Ms Tennyson, Mr Lynch confirmed that there was no mention of theft in the dismissal letter.  Mr Lynch also confirmed that he did not take any action when the Complainant accepted his oversight in not banking all the money he received from a customer.

In relation to the Respondent’s contention that the Complainant was speaking on the phone while driving, Ms Tennyson asked Mr Lynch if the Complainant had Bluetooth in his van.  Mr Lynch confirmed that this was the case but that the Complainant would have to read figures on a computer handset.  In response to Ms Tennyson’s suggestion that the disputed phone call between the Complainant and Mr Lynch was a general phone call about how the day went, Mr Lynch again said that the Complainant would have to read off a handset.  Ms Tennyson replied that the Complainant would say that he was not reading off a handset.  Mr Lynch replied that the Complainant said that he was using a handset during the call.

In relation to the level of training provided to the Complainant, Mr Lynch said that he received more guidance and support than his colleagues.

Mr Lynch confirmed that there was no investigation or disciplinary hearing or meeting in relation to the Complainant’s alleged misbehaviour.  Mr Lynch also confirmed that the Complainant did not receive any warning about his performance prior to his dismissal.  Mr Lynch further confirmed that the Complainant was not put on notice that he was at risk of dismissal.    Mr Lynch accepted that there was no paper trail. 

Mr Lynch confirmed that he made the decision to dismiss the Complainant and instructed the Regional Area Manager to dismiss him.  Mr Lynch said that the Regional Area Manager asked the Complainant to meet him at the lock-up because he had paperwork for him. 

Mr Lynch said that he did not accept that the Respondent did not adhere to its disciplinary procedures because the Complainant’s behaviour justified it not following the disciplinary procedure.

The Complainant submits as follows:

On the 19 December 2020 and on the 14 January 2021 the Complainant had made complaints to Jim Lynch, part owner and director of the Respondent about bullying treatment towards him by another Company Director who was also part owner the Respondent company and about the Complainant’s Regional Area Manager.  Also, in the months prior to his dismissal, the Complainant had been providing feedback to both the other company Director and the Regional Area Manager about stock and other work matters, which was not welcomed by them.

On the 23 December 2020, the Complainant received an email from the Respondent that he was the third best sales merchandiser in Ireland.

The Complainant was due to return to work after the Christmas break on the 5 January 2021.   However, he requested an extra week as due to family reasons.  When the Complainant returned to work on the 11 January 2022, 35 of his best sales in Dublin had been removed by the Respondent without any consultation with him. 

The Complainant’s summary dismissal

The Complainant was not the subject of any disciplinary investigation, disciplinary meeting or hearing, and was not put on notice by the Respondent that his role was at risk of dismissal.   The Respondent failed to adhere to the basics of fair procedures and process in advance of dismissing the Complainant.  The Respondent summarily dismissed the Complainant on the 18 March 2021 by handing a letter of dismissal to him in the following circumstances:

On the morning of the 18 March 2021, the Regional Area Manager telephoned the Complainant and asked him to meet with him at the Respondent’s lock-up as he had paperwork for the Complainant. To the Complainant’s shock when he turned up the Regional Area Manager was present with another man who asked the Complainant to hand over the keys to the company van. When the Complainant asked why, and what was going on, the Regional Area Manager told the Complainant that his contract had been terminated and proceeded to call the Complainant “a little bollocks.”

There was no investigation by the Respondent which involved the Complainant; no allegations or complaints in writing were provided to the Complainant and consequently there was no opportunity for him to respond; the Complainant was not even made aware that the Respondent was considering disciplining him. The Respondent ignored its own disciplinary procedure and summarily dismissed the Complainant without any recourse to fair procedures or process.  The Complainant notes that the Respondent has claimed that he was paid his notice period and accrued holiday pay, however this was never paid by the Respondent to the Complainant.

The Law

The Respondent has totally failed to adhere to the principles of natural justice and fair procedures in their dismissal of the Complainant. 16.  The Complainant relies on Section 6 (7) of the Unfair Dismissals Act 1977, as amended:

“… in determining if a dismissal is an unfair dismissal, 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)      the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7 (2) of this Act.”

In Kilsaran Concrete v Vet UDD 11/2016 the Labour Court noted that that there were certain “fundamental requirements” of their procedures that could not be disregarded. These included the requirement 

i.                to make the employee who is subject of the investigation aware of all of the allegations against him or her at the outset of the process; 

ii.        that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting the disciplinary process; and 

iii.       in the event that an allegation against the employee is upheld, that any disciplinary sanction imposed is proportionate to the complaint that has been substantiated. 

In that case, the process was flawed because the company’s investigation dealt with allegations that had not been formally put in writing to the Complainant either at the outset of the investigation or in the course thereof. The company also failed to comply with its own stated procedures at the internal appeal stage. Having regard to the employee’s financial losses, the Labour Court awarded the employee €40,500 in compensation.

The Complainant submits that, in breach of his contract of employment, the Respondent has failed to comply with its own disciplinary procedures, and thus this is an automatic unfair dismissal. 

Further, the Respondent has not complied with SI 146/2000 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 and specifically under ‘General Principles’ as follows:

“6. The procedures for dealing with such issues reflecting the various circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

∙ That employee grievances are fairly examined and processed;

∙ That details of any allegations or complaints are put to the employee concerned;

∙ That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

∙ That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

∙ That 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 or circumstances. 

7. These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.”

The Complainant was not provided with any allegations or complaints; nor were any allegations or complaints put to him; nor was he given the opportunity to respond to same; nor was he given the opportunity of the right to be represented; nor was he given any fair or impartial determination.  Furthermore, the Complainant relies on Section 7 of the Unfair Dismissals Act 1977, as amended which provides for the redress for unfair dismissal and he seeks compensation for his unfair dismissal. Section 7(1)(c) provides for a maximum of 104 weeks remuneration in relation to the Complainant’s financial losses.  Section 7(2) provides that “in determining the amount of compensation payable…regard shall be had to-

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,…

… (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,…” 

In accordance with Section 7(2), it is submitted that account should be taken of the Respondent’s summary dismissal of the Complainant during the COVID pandemic, as well as in the context of the Complainant having made bullying complaints concerning a part-owner/director of the Respondent company as well as against the Complainant’s manager.  Furthermore, given that the Respondent has not complied with its own disciplinary procedure (as referred to in the Complainant’s contract of employment), nor has the Respondent complied with the provisions of SI 146/2000, it is submitted that regard should be had to this total non-compliance when determining compensation.

Mitigation of loss

The Complainant received the back to work allowance and jobseekers benefit from the 19 March 2021 to the 13 January 2022. However, given that these are social welfare payments they should not be taken into account in calculating financial loss.  After he was dismissed, the Complainant applied for jobs.  However, he only received acknowledgement emails and did not get any interviews. The Complainant then decided to try and set up his own business.  Unfortunately, however, despite the Complainant’s best efforts, this business was not successful and his profit during this self-employment period was €782.00. 

When his business did not work out, the Complainant recommenced his search for employment and got a new job which commenced on the 14 January 2022.

The Complainant’s salary for 2020 with the Respondent was €28,756.21 gross.  The Complainant received salary up to his dismissal on the 18 March 2021 from the Respondent of €7,790.19. Given that the Complainant only made a profit of €782.00 from his business, the total earnings he made in 2021 were €8,572.19. Therefore, the Complainant’s total losses which he is claiming against the Respondent for compensation as a consequence of his unfair dismissal is €20,184.02.

Direct evidence of the Complainant

The Complainant said that he raised an issue with the Director and the Regional Area Manager in December 2020.  He was not happy with the feedback he received which was an email suggesting that he needed to get on with the job and stop moaning. 

The Complainant confirmed that at the end of 2020, he was the third placed merchandiser in Ireland.  When he arrived back in work after the Christmas break on 11 January 2021, he met with another employee to collect his van.  When he got into the van, the other employee told him that the Regional Area Manager had asked him to take 35 of the Complainant’s calls.  When the Complainant asked the Regional Area Manager about this, he was told that it was due to the cost of diesel.  The Complainant did not understand this as he was still travelling long distances in the course of his work.  The Complainant feels that his calls should have been returned to him but they were not. 

The Complainant said that when he commenced employment with the Respondent, he was trained in by the Area Manager who showed him how to do exchanges.  The Complainant contends that he was told that if he forgot to do invoices when he was in a customer’s premises, he could do them at a later time.  The Complainant asserts that he was not advised that he had to do invoices at a certain time.  The Complainant said that he had followed this advice without any issues until October/November 2021. 

In relation to not lodging €100 which he had received from a customer, the Complainant said that it was an oversight on this part.  When he was alerted to what had happened, he accepted that he had made a mistake and lodged the outstanding money.

In relation to the disputed call while he was driving, the Complainant said that he was having a general conversation with Mr Lynch via Bluetooth and that he was not reading any documentation.  The Complainant said that he told Mr Lynch that he was not reading anything while he was on the call.  The Complainant said that he never received a copy of the tracking report which was referred to by Mr Lynch.

The Complainant said that on 18 March 2021, the date of his dismissal, he was driving to Ashbourne when he received a call from the Regional Area Manager asking the Complainant to meet up him at the Complainant’s local lock-up because the Regional Area Manager had paperwork that he needed to give him.  The Complainant asked if the Regional Area Manager could leave the paperwork in the lock-up and he would get it later but the Regional Area Manager insisted that the Complainant meet him at the lock-up. 

When the Complainant arrived at the lock-up, the Regional Area Manager jumped out of his van and handed the Complainant a document saying “there’s a letter of termination”.  The Regional Area Manager told the Complainant to get out of his van because “your contract is terminated”. 

When the Complainant asked the Regional Area Manager what was going on, the Regional Area Manager told him to read the letter.  The Regional Area Manager then asked him for his keys.  This left the Complainant with no means of returning to his home which was 4kms from the lock-up.  The Regional Area Manager had a colleague with him who gave the Complainant a lift home.

The Complainant said that he had not received any warnings about his conduct and the possibility that he might be dismissed.  He was effectively thrown out on the side of the road.  The Complainant said that what happened to him was terrible.

The Complainant said that he tried to get another merchandising job.  Although he got acknowledgments of his job applications, he did not get any interviews.  He decided to set up his own business and he went on a six-week training course.  He was self-employed from 1 May 2021 until 18 September 2021 but his business was not successful.  He accepted a job in January 2022 at higher salary than his salary while he worked for the Respondent.

Legislation

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

 “(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 the 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 the 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 made under statute. “

The application of the law in relation to the dismissal of an employee is relatively straightforward.  The burden of proof to show that a dismissal was not unfair rests with the employer who is, after all, taking the very serious action of terminating a contract of employment. The Unfair Dismissals Act requires that the employer must be able to show that fair procedures were followed and that there existed substantial grounds justifying the decision to dismiss.

Procedural Framework

The first matter I must decide is if the procedural framework adopted by the Respondent is this case was in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·       That employee grievances are fairly examined and processed;

·       That details of any allegations or complaints are put to the employee concerned;

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·       That 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, circumstances.

Based on the totality of the evidence adduced, both written and oral, it is abundantly clear that the Respondent did not follow any procedures before coming to the decision to dismiss the Complainant.  The Complainant was caught completely unawares when he was handed his letter of dismissal by the Regional Area Manager on 18 March 2021.  This is completely contrary to the norms of employment relations practice in Ireland which requires that the dismissal of an employee should not come as a surprise to the employee concerned.  Instead, in line with the core tenet of SI 146 of 2000, all employees are entitled to fair procedures and natural justice in all of their engagements with their employer.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet, UD1294/2008. 

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited [1973] IR 388, stated that:-

"This court in re Haughey [1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

In light of the above, I find that the dismissal of the Complainant was procedurally unfair.

Substantive matters

I must now decide if the decision to dismiss was a reasonable and proportionate response to the Complainant’s conduct.  

In Bunyan -v- United Dominions Trust (Ireland) 1982 ILRM 404, the EAT endorsed and applied the view in the case of N.C.Watling Co Limited -v- Richardson 1978 IRLR 225 EAT (ICR1049) where it was stated; “The fairness or unfairness of 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. The Tribunal therefore does not decide the question whether, on the evidence, before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded’’.   As the alleged shortcomings on the part of the Complainant were not the subject any investigation or disciplinary procedures, if appropriate, I am not in a position to determine if dismissal was a reasonable response in the circumstances.  Accordingly, I find the Complainant was unfairly dismissed.

Redress 

Section of the Unfair Dismissals Act 1977 – 2015 stipulates that where a complaint succeeds, redress may be awarded up to a maximum of 104 weeks’ remuneration, based on the financial loss suffered following the termination of employment. 

“ (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: …

… (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances.”

In calculating the level of compensation I took into consideration the efforts of the Complainant to mitigate his losses.  After the hearing, the Complainant submitted evidence that he applied for seven jobs in March and April 2021.  I find that his efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

In conclusion, and having regard to all of the circumstances of the complaint, I find that the dismissal of the Complainant was substantively and procedurally unfair. It is my considered opinion that the Respondent showed no regard to the principles of fair procedures and natural justice.

I find, however, that the Complainant has not made sufficient effort to mitigate his loss. Taking all factors into account, I direct the Respondent to pay the Complainant redress of €18,000.

Unfair dismissal – complete absence of procedures