Complainant

Respondent

Parties

Charles  Lahiff

St Margarets Recycling & Transfer Centre Limited

Representatives

Caolan Doyle Doyle & Company LLP

William Wall Peninsula

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-00048910-001

03/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048910-002

03/03/2022

The Complainant worked as a General Operative from 1st March 2019 until his dismissal on 6th December 2021.

The Complainant was accused of alleged unauthorised removal of company property from the premises. The Manager spoke to him and said someone said he had taken an item. He showed the Complainant images from the CCTV. He was suspended on 25th November 2021 due to an allegation by a staff member that he stole a catalytic converter from the warehouse.

On the same day, an investigation meeting took place on 25th November 2021. The Complainant did not receive notice of the meeting. He did not have a representative or witness attending the meeting. He discussed this with the Office Manager Ms. Kinahan. He was upset and felt under pressure. The Manager was annoyed. He was suspended immediately. He subsequently redacted the investigation minutes and denied taking a piece of metal of no value.  The suspension was based on CCTV which showed him holding an item which was his hoodie. He was invited to a meeting on 6th December 2021. Following the meeting he was dismissed after about ten minutes, as he had broken trust and not admitting to taking the item from the premises.

The Complainant’s representatives say it was a fundamentally unfair process, and submitted an unfair process leads to an unfair dismissal. The Complainant had not viewed all CCTV before attending the investigation meeting, there was no notice of the investigation meeting, nor did he have an opportunity to obtain representation. The Office Manager investigated the allegations, and made the decision to dismiss based on her own investigation

The Complainant was not paid notice on dismissal. He began a new job on 28th February 2022.

The Respondent operates as a buyer and seller of scrap metal.

The claim of unfair dismissal and failure to pay notice is denied. The Complainant was dismissed for gross misconduct on 22nd December 2021. The Complainant signed his contract of employment on 18th May 2020 which refers to the disciplinary process.

Around 25th November 2021, the Respondent became aware the Complainant had allegedly taken an item home without authorisation. On that day the Respondent discussed the matter with the Complainant who said he had taken home a piece of metal with no monetary value for home improvements. He said he did not seek permission as he didn’t think he needed to ask. In a conversation the following day, the Complainant denied he had taken a piece of metal home and said it was his jumper. The Complainant said if you don’t trust me do up my papers.

The Complainant was invited to a disciplinary hearing on 6th December 2021. On 22nd December 2021 he was notified by letter that he was dismissed for gross misconduct and given a right of appeal within 5 days. He did not exercise his right to appeal. The Complainant instructed a solicitor to lodge a complaint to the Workplace Relations Commission without exhausting the internal process. The solicitor wrote to the Respondent on 15th December 2021 and 11th January 2022.

The Respondent relies on S 6 4 (b) of the Unfair Dismissals Acts 1977 -2015 which says that a dismissal is not unfair if it relates wholly or mainly to the conduct of the employee. Fair procedures were given to the Complainant in the process. The Respondent relies on Looney & Co. Ltd. v Looney UD843/1984, when the Employment Appeals Tribunal said that it is their responsibility to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.

The Respondent relies on the decision in Israr Ahmed v Bidvest Noonan Services Group Limited  ADJ00030617 where a security officer was dismissed for stealing 10 bottles of hand sanitiser during the COVID19 pandemic. The Adjudication Officer in this matter stated “I find that the Complainant was employed as a security officer and his total responsibility was to protect the client’s premises and property. …..I find that he is employed in a position of trust and he has breached that trust. I find that in this case, you cannot quantify dishonesty based on the value of what was taken”.

The Respondent say that they acted within the range of reasonable responses of an employer. The Complainant contributed greatly to his dismissal.

I heard and considered the written and oral submission and evidence of the parties.

The Complainant was employed with the Respondent which is in the business of trading scrap metal. The Respondent has a Disciplinary Procedure which applies to the Complainant. Gross misconduct includes (j) “theft or unauthorised possession of money or property, irrespective of value, whether belonging to us, another employee or a third party”.

The Respondent’s CCTV policy provides that its cameras are used for security purposes and reserves the right to use CCTV in a disciplinary process. The Complainant signed his contract of employment on 18th May 2020 and was provided with the Employee Handbook on 12th November 2021.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that 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 to 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 statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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 (1) (7) of the 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 as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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.

On 19th November 2021, a staff member reported he saw the Complainant remove an item which was covered from the site. The Complainant was informed about the allegation on 25th November 2021 by the Managing Director. He was requested to attend an interview that day with Ms. Kinahan, Office Manager to discuss the allegation. He did not receive notice of the meeting in advance nor have an opportunity to obtain representation or a witness. At the meeting, the Complainant said he took a piece of metal of no value from the site, and denied it was a catalytic converter. He did not request permission to take the item. The Complainant was provided with an opportunity to view the CCTV.

The following day the Complainant notified the Office Manager that he felt under pressure. The Manager was annoyed. He denied taking the metal item, said he removed his hoodie and nothing else. He was upset which is why he said it. The Complainant redacted the minutes of the investigation to remove this statement.

The Complainant attended a disciplinary hearing on 6th December 2023. The Managing Director was unavailable to chair the meeting. The Complainant was then notified of the decision to dismiss by the Office Manager. The Respondent found the Complainant’s explanation unsatisfactory as they failed to understand why he would admit to removing an item and redact this at a later date. The Respondent did not believe that being upset is a reasonable reason to admit something so serious. They had a reasonable belief that the Complainant removed company property without authorisation. The Complainant did not appeal and set out his objections to breaches of fair procedure by the employer.

The Complainant’s representatives object to various procedural breaches, and submitted an unfair process leads to an unfair dismissal. They say the Complainant had not viewed all CCTV before attending the investigation meeting, there was no notice of the investigation meeting, nor did he have an opportunity to obtain representation. In addition, the Office Manager investigated the allegations, and also made the decision to dismiss based on her investigation so the decision to dismiss could not be impartial.

The extent of compliance by the Respondent with Statutory Instrument 146/2000 Industrial Relation Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) Declaration Order 2000 can be taken into account in my consideration of the dismissal. At paragraph 6 this requires organisations to comply with the general principles of natural justice and fair procedures which include:

“The procedures for dealing with such issues reflecting the varying 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.”

It is undoubtedly a serious charge of misconduct for an employee to be accused of theft which is a criminal offence. The Supreme Court in Mooney v An Post [1998] 9 ELR 238 stated an employee is entitled to fair procedures but what fair procedures demand will depend on the circumstances.

The High Court in Flanagan v University College Dublin [1989] ILRM 469 found where there are serious adverse consequences for an individual the criterion for fair procedures to be applied must be the consequences for the person of an adverse verdict. In this case, there were serious adverse consequences for the Complainant in respect of his employment if there was an adverse decision made against him in the disciplinary process. 

The Respondent’s decision to dismiss the Complainant for gross misconduct was based upon an investigation and disciplinary process that was not fair. The Complainant did not have the benefit of representation when responding to the serious allegations. The Office Manager was both investigator and decision-maker which breaches the rule “nemo judex in causa sua”, that a person accused should be entitled to an impartial hearing. I find the decision to dismiss was procedurally unfair.

However, the Complainant did not exercise his right to appeal and raise concerns about the process with the Respondent who would have considered this further. The Complainant found another job. He has financial loss is €7,500 together with one week’s notice of €548.00. I am taking into account the Complainant’s contribution to his dismissal, and find it is just and equitable that he be awarded €6,000.00 plus one week’s notice of €548.00 in respect of financial loss and I direct payment by the Respondent.

The dismissal was unfair. The Complainant is awarded €6,000.00 plus one week’s notice of €548.00 in respect of financial loss and I direct payment by the Respondent

Allegations of theft, dismissal for gross misconduct, procedurally unfair