Complainant

Respondent

Parties

Bobby  Fenton

Grasstec Limited.

Complainant

Respondent

Anonymised Parties

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Representatives

Mr Donncha McCarthy BL instructed by Ciarán Cummins BDM Boylan Solicitors LLP

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-00045460-001

29/07/2021

The Complainant was employed as livestock sales agent from 4 January 2019 until his summary dismissal for gross misconduct on 25 June 2021. His salary was €3333.00 monthly. The Respondent company is involved in livestock sales and is part of a wider group of companies providing other agricultural support services.   On the 25 June 2021 the Complainant attended a normal work meeting and was asked to remain in the building when other colleagues had left. He was confronted by the Respondent’s senior management and accused of gross misconduct (fraud or intention to defraud the Company) and presented with a letter of dismissal at the conclusion of the meeting. The Complainant claims he was afforded no notice of the meeting, no opportunity of representation and that the Respondent did not carry out any proper investigation of the alleged incident. He submits that the accusations were baseless and that there were no established fair procedures relied upon by the Respondent in terminating his employment.

 The Respondent asserts that it was justified in summarily dismissing the Complainant because it submits that he did deliberately and consciously set out to compete with the Respondent by trading in livestock on his own account during working hours, which was in competition with the Respondent.

Ms Aileen Carter, Head of Administration, , gave evidence of the Complainant seeking detailed written information on the export of livestock to the UK post-Brexit.   She sent the necessary forms on to the Complainant. She became suspicious of the request because agents did not ordinarily seek such information about the process, which was quite complex, and she reported her suspicions to the management.  Documentation was exhibited to show that the Complainant had forwarded on the documentation to Mr A, a colleague livestock agent who was subsequently found to have been in business on his own account in the export of cattle to the UK whilst in the employ of the Respondent. A subsequent phone call to the witness from the livestock haulier ordinarily used by the Respondent indicated that a consignment of livestock was being sent to Mr B in the UK, and this transaction was being organised by Mr A , using a different export company.   

Mr Pat Carroll, Manager of the livestock department, gave evidence that the information required by the Complainant from Ms Carter was not ordinarily required by agents in the field. He went to a location in West Cork on 22 June 2021, the day of the movement of cattle by the haulier, and observed the Complainant arriving at the farm in a vehicle accompanied by Mr A. The cattle were not moved that day because of a complication with documentation.  He referred to a document of a competitor, which was exhibited, which showed the load of cattle in question being charged up to Mr B in the UK. It was the witness’s evidence that at the meeting of 25 June 2021 when the Complainant was dismissed, the Complainant admitted that he was aware of the dealing, he was in attendance on the farm in question on the day and that he should have told the Respondent. When the witness drove the Complainant home after the meeting, the Complainant said, according to the witness, that “Bertie had no choice”; Bertie being Mr Bertie Troy, Manging Director of the Respondent company.

Mr Bertie Troy, Managing Director, said that the information sent by the Complainant to Mr A facilitated fraudulent dealing which amounted to €9000 in a deal which should ordinarily be carried out as part of the Respondent’s business but was instead facilitated through a competitor by Mr A, who was assisted by the Complainant. The witness gave evidence of what transpired at the meeting of 25 June 21 where he stated that the Complainant had not made any meaningful defence and the Complainant had intimated to both Mr Carroll and him that, in hindsight,  he should have owned up about the dealings of Mr A.

In cross-examination the witness accepted that the Complainant was not informed in advance about the nature of the meeting on 25 June 2021, no contemporaneous notes were provided subsequently to the Complainant when requested, nor was he offered the opportunity to have representation.  The witness also acknowledged that the Complainant was not afforded an appeal of the decision to dismiss.

A driver for the haulage company gave evidence on waiting to load cattle in West Cork on the material day in question when both Mr A and the Complainant were in attendance.  

Submission.

The Respondent opened Bank of Ireland v Reilly [2015] IEHC 241 where Noonan J gave a proper construction to Section 6 of the Unfair Dismissals acts 1977-201 (“the Acts”) with specific regard to proportionality as well as a number of other cases defining gross conduct.

The Respondent submits that in this case the evidence before the Respondent was such as would justify any reasonable employer in dismissing an employee. After interviewing the Complainant and other staff all the evidence available to the Respondent pointed to the Complainant trading on his own account during working hours with his employer's customers and in direct competition with his employer and using his employer's proprietary information to advance that trade. The Respondent also asserts that the evidence also showed that the Complainant knew what he was doing and this was not a case of inadvertent wrong-doing. The Respondent points to another relevant factor which is that the Complainant displayed no insight into, or contrition for, his misconduct and that there was a complete breach of trust and confidence.

The Respondent submits that an employer is entitled to dismiss where it is established that an employee is competing against him or acting against his interests and in breach of his duty of fidelity. A number of cases to support this argument were opened by the Respondent. The Respondent argues that it was clear in this case that the Complainant was involved in a joint exercise with Mr. A to defraud his employer. 

On mitigation of loss, the Respondent exhibited correspondence from the Complainant where he stated that he had been ill since being dismissed and was not available to take up work. The Respondent pointed out that the Complainant contradicted this evidence at the hearing where the Complainant admitted that he had worked for another company which was engaged in the same business as the Respondent for a period of two month soon after his dismissal. The Respondent further opened a number of cases where no compensation was awarded for complainant’s who were found to have been unfairly dismissed but were found also to have contributed 100% to their own dismissals. The Respondent argues that the same logic should be applied here where the Complainant was the author of his own misfortune.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.      

The Complainant gave evidence that no proper procedures were adopted by the Respondent when he was dismissed. He said Mr Troy was judge and jury on the day and handed him a preprepared letter of dismissal. He stated that he had legitimate business in West Cork on the day in question at a nearby farm to the one where there was a disputed load of cattle. He said he never had dealings with Mr B in the UK but admitted that he was on the farm with Mr A on the day in question because they travelled down together.

The Complainant accepted, in cross-examination, that there was a clause of exclusive service with the Respondent in his contract of employment and that he should also have reported the dealings of Mr A to the Respondent. His position was that he was in the wrong place at the wrong time on June 22, 2021. He said that he did not believe his actions of not reporting the activities of Mr A were a  reason for dismissal, but that it did warrant disciplinary action of some sort.

The Complainant accepted that he worked for another company for two months and eventually went back to full time farming, where previously he had been a part-time farmer. He did not disclose his earnings from farming at the hearing. 

Submission:

The Complainant submits that the Respondent claims to have fairly dismissed him for gross misconduct but  there was  no evidence to ground  the claim of gross misconduct.

At the meeting of 25 June 2021, the Complainant claims that the allegations of gross misconduct were not put to him at the meeting but were included only in the letter of dismissal that he received at the conclusion of the hearing. He submits that the dismissal for gross misconduct was completely disproportionate.

The Complainant asserts that the Respondent had a detailed policy in which it describes its’ Corrective Action / Disciplinary Procedure” and detailed therein are the procedures to be applied in cases of gross misconduct. The Complainant submits the Respondent entirely failed to apply any of its procedures.

The Complainant submits that the Respondent did not abide by its own procedures and makes the following points:

·       The procedures refer to the fact that an investigation will be carried out and that an Investigators Report will be submitted to the Managing Director. No Investigation Report was provided to the Complainant at the time of his dismissal.

·        The procedures detail that following an investigation a disciplinary hearing may need to take place and that in such circumstances “the employee will be notified of the disciplinary hearing in writing”. No notice, either in writing or orally, was provided to the Complainant to attend a disciplinary hearing.

·       The procedures detail how the Respondent will maintain written records of each disciplinary hearing, but none were provided to him when requested.

·        The Respondent’s procedures detail how “the employee will be given the opportunity to respond to each of the allegations put to him/her”. The Complainant was afforded no opportunity by the Respondent to respond to any allegation.

·       The Respondent’s procedures detail that “all disciplinary meetings/interviews shall be held in private in a suitable venue and out of earshot of other employees & individuals”. The Complainant was informed of his immediate dismissal for alleged gross misconduct in the Reception of the Respondent’s Head Office.

·       The Respondent’s procedures state that “employees will be provided with any evidence that the Company has in respect of the disciplinary matter in advance of the disciplinary hearing/interview”. The Respondent provided no evidence to him in advance of the hearing/interview and provided no evidence on the day of the hearing.

·       The Respondent has detailed the principles that will apply in matters related to its Procedure including that “the employee is entitled to be accompanied by a work colleague at hearings/meetings”. The Complainant was not afforded any opportunity to be accompanied or represented at the meeting on 25 June 2021.  The Respondent’s procedures detail that when an outcome is communicated “the appeals procedure will be explained”. The Complainant was offered no opportunity to appeal the dismissal decision.

The Complainant further submits that the lack of procedures as listed were completely contrary to SI 146 of 2000, the WRC Code of Practice on Grievance & Disciplinary Procedures.

The Complainant acknowledges that the relationship between the Respondent and himself has broken down and is therefore seeking compensation. In the absence of compensation he would welcome the opportunity to be re-instated or re-engaged.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.      

APPLICABLE LAW:

Section 6(7) of the 1977 Act provides:

"Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so -

(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 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."

This principle of reasonableness requires employers to not only establish substantial grounds justifying dismissal but also to follow fair procedures before termination. A relevant case, Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, outlined premises necessary to support a decision for termination due to misconduct, emphasising the importance of bona fide complaints, clear communication, fair employee interviews, evidence-based decisions, and proportionality in dismissal. Flood J. highlighted that principles of natural justice must be unequivocally applied in cases of unfair dismissal.

In  Kilsaran Concrete v Vet UDD 11/2016 the Labour Court  further emphasized fundamental requirements for fair procedures, including informing the employee of all allegations at the beginning of the investigation and  strict adherence to published disciplinary procedures.

 In this case, the evidence shows there was a total disregard for any type of fair procedure, including the Respondent’s own procedures. The Respondent may well have been justifiably angry at the turn of events suggesting cattle trading outside of its ambit by employees, but the Complainant was not informed in advance of an investigation nor of the disciplinary meeting on 25 June 2021. He was not offered the opportunity to be represented and the evidence shows clearly that the letter of dismissal was prepared in advance of the meeting thus suggesting that the Complainant’s case was never going to be considered. No appeal was offered.  I can come to no other conclusion but that this was an unfair dismissal due to the unreasonableness of the manner in which the dismissal was carried out.

REDRESS

Section 7 of the 1977 Act, in its relevant parts, provides:

(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:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

…. (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, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection 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,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

[(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,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and 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 the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

The decision of Coad v Eurobase (UD1138/2013), outlines the duty to mitigate loss under the Act where the Tribunal noted:

“In calculating the level of compensation, the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) 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.”

The Complainant worked for a period of two months for another livestock sales agent and eventually returned to full-time farming. The Complainant was somewhat circumspect in declaring whether his income from farming was greater than his income with the Respondent. The burden is on the Complainant to show he has strived to mitigate his loss by seeking further employment. I can only conclude that the evidence the Complainant produced in this regard was feeble and  rather contradictory. There was also convincing evidence to show there was a  significant element of contribution by the Complainant to his dismissal.  Having regard to all the circumstances in this case, I direct the Respondent to pay the Complainant the compensatory sum of €2000.    

For the reasons outlined above I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay the Complainant the compensatory sum of €2000.00