Complainant

Respondent

Parties

Mark Hosey

 Mark Johnson Motors

Representatives

Fionnán Long BL

Cathy Mc Grady BL

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-00045057-001

Withdrawn

06/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045057-002

06/07/2021

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

CA-00045057-003

06/07/2021

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

CA-00045057-004

06/07/2021

The respondent is a self-employed motor mechanic.  He established his business in 2003 and, over the years, has employed two or three mechanics.  The complainant started working for him in April 2013.  He worked 39 hours a week for wages of €660.00 per week.  With the permission of his employer, the complainant also did work on a self-employed “nixer” basis in the respondent’s garage.  The complainant was dismissed on May 15th 2021 for ordering parts for his nixers and charging them to the business.  He claims that his dismissal was unfair and that the procedures that ended with his dismissal were also unfair.

There were no issues with the complainant’s conduct until August 2019 when a customer of his nixer business came to the garage, took out a gun and threatened to kill him. 

In April 2021, the respondent telephoned a customer about a payment for work done on his car.  The complainant had carried out the work and the customer explained that he paid the bill of €400 to the complainant.  Arising from this incident, the respondent investigated other transactions.  In a toolbox in the garage, he found a bundle of invoices for parts ordered by the complainant for his nixers, but the parts were charged to the respondent.  Around May 15th 2021, the respondent met the complainant and asked him about the invoices in the toolbox.  The complainant said that he paid for the parts and that he would prove it.  He didn’t provide any proof however, and he left the garage and never came back to work. 

On May 27th 2021, the respondent wrote to the complainant confirming that he had been dismissed:

“You have been dismissed in relation due to your engagement of nixers (sic), which resulted in an incident at our business premises wherein a ‘customer’ of yours produced a gun, and further due to unauthorised pledging of our credit with suppliers resulting in financial loss to the business.”

It is the respondent’s case that, because of the complainant’s conduct, he has had a loss of at least €6,249.  A copy of the 26 invoices which the respondent retrieved from the toolbox were provided in the respondent’s book of documents at the hearing.

The Respondent’s Case that the Dismissal of the Complainant was Not Unfair

Referring to section 6 of the Unfair Dismissals Act 1977 (“the 1977 Act”), Ms McGrady argued that there were substantial grounds justifying the dismissal of the complainant and that his dismissal was a direct result of his misconduct.   In her submission, she said that the respondent is a small business-owner, without human resources expertise.  However, the complainant was always aware of the allegations regarding his conduct and he was given an opportunity to respond.  He did not explain why invoices for parts ordered for his jobs were charged to the business.  He was given an opportunity to prove that he paid for the parts, but he did not do so.

In its findings in the case of Dunne Stores v Karen Walsh[1], the Labour Court considered the decision of the Court of Appeal in Hestor v Dunnes Stores[2].  Ms Hestor was dismissed for taking product from the store where she worked.  Having considered the evidence, the Court was “satisfied that the conduct of the Appellant could be regarded as sufficiently grave to give rise to serious disciplinary action.”  It found that the dismissal of Ms Hestor was “within the reasonable responses which might be expected of a reasonable employer.”

Evidence of the Respondent, Mr Mark Johnson

Mr Johnson said that he operates a business under his own name and not as a limited company.  The complainant is a mechanic and, since he started with him in 2013, Mr Johnson said that he allowed him to use the garage in the evenings and at weekends to do his own work on a nixer basis.

Around the end of April 2021, the complainant took in a car from a customer, Mr Darren Mooney.  The parts for Mr Mooney’s car were supplied by a distributor called Euro Car Parts and were charged to Mr Johnson’s account.  Mr Johnson said that he wasn’t in the garage when Mr Mooney’s car was brought in.  When he saw that he had been charged for the parts, he followed up with Mr Mooney, who told him that he paid the complainant.  Mr Johnson said that he then became suspicious.  He looked in the garage and found invoices scrunched up in a roller chest toolbox.  He went through his statements and he found that he had paid for the parts on the invoices.  Mr Johnson referred to the 26 invoices included in his book of papers which are dated from July 2018 until May 2021.  All the invoices were paid for by him. 

On May 15th 2021, Mr Johnson said that he met the complainant and he told him what he had discovered.  The complainant denied that he had charged the parts to the company account.  He asked for copies of the invoices and he told Mr Johnson that he had it all wrong.  Mr Johnson replied that he had been in touch with Euro Car Parts and that they confirmed that all the parts were charged to him.  Mr Johnson told the complainant that if he could show that he had paid for the items on the invoices, he’d be satisfied.  The complainant said that he couldn’t prove that he paid for every drop of oil, coolant, wipers and bulbs.  Mr Johnson said that the complainant handed him the keys of a car he had the use of and said, “you’ve made up your mind.”  He then walked away.  After this meeting, the complainant did not contact Mr Johnson and he didn’t offer to pay for the invoiced parts.

Mr Johnson referred to an incident in 2019 where one of the complainant’s nixer customers arrived at the garage and threatened him with a gun.  It is my view that this incident is not relevant to the fact that the complainant was dismissed, but Mr Johnson said that, after that incident, things weren’t good between him and the complainant.

Mr Johnson confirmed that he sent the letter of dismissal dated May 27th 2021 which has been referred to in the previous section.

Cross-examining of Mr Johnson

Mr Johnson agreed that, during eight and a half years of employment, the complainant hadn’t received any warnings in relation to his conduct.  He agreed that the complainant was an obliging employee.  He lived across the road from the garage and he was a key-holder.  He did nixers from early on in his employment.  Mr Johnson said that the complainant could have earned between €300 and €400 a week on the nixers.  He said that he did work for his own customers, including his family and friends.

Mr Long asked Mr Johnson if the complainant was authorised to use the business account to buy parts.  Mr Johnson said that he could use the account if he paid him for the parts he purchased.  He recalled that, occasionally, the complainant reimbursed him.

Mr Johnson said that Mr Darren Mooney was a long-standing customer of his garage and the complainant worked on his car.  Mr Long referred to an invoice dated May 1st 2021, which was for a part for Mr Mooney’s car.  Mr Long put it to Mr Johnson that the complainant was not at work on May 1st 2021, but Mr Johnson said that that was “entirely untrue.”  The complainant’s evidence was that he was at work on the first Saturday in May, which was May 1st and that this was the last day that he was in the garage.

Mr Long referred to another invoice which is in the respondent’s booklet, which, he said was for a part which Mr Johnson returned to Euro Car Parts.   Mr Johnson said that he couldn’t confirm if that was the case.

Mr Johnson agreed with Mr Long that most of the invoices he has submitted in evidence were for small value, although the amounts varied.  He said that he found the invoices hidden in a roller chest toolbox and in a carrier bag with personal items.

On May 7th 2021, Mr Long said that the complainant told Mr Johnson that he couldn’t come to work because his partner was a close contact of someone with Covid-19.  Mr Johnson said that the complainant never returned to the garage after May 1st, which was the last day on which he did nixers in the garage.  Mr Johnson then spent two weeks checking his accounts and statements and searching the garage.  On May 15th, he sent the complainant a text message and asked him to meet him at the garage.  Mr Johnson agreed that he never mentioned a disciplinary investigation and he also agreed that the complainant was stunned.  He said that they stood outside the garage because of Covid-19 restrictions.  Mr Johnson said that he thought that he had all the proof he needed to reach a conclusion that the complainant had used his account to order parts for his own jobs.  He said that he gave the complainant a copy of the invoices.  The complainant offered to pay him back and he told him that he might owe him €5,000.  Mr Johnson agreed that he dismissed the complainant on the spot.  He said that, as of the date of this hearing, the complainant had not returned a set of Bluepoint tools or the keys of the garage.

Evidence of the Respondent’s Customer, Darren Mooney

Mr Mooney said that, around the end of April 2021, there was a water leak in his daughter’s car and he brought it to the respondent’s garage to be repaired.  Mr Mooney said that he thinks that the complainant rang him to let him know that the cost of the repair was €400.  He collected the car and paid the €400 to the complainant.  Mr Johnson then phoned him looking for the payment, and he told him that he had given the money to the complainant.

Mr Long did not cross-examine Mr Mooney.

Summarising the respondent’s case, Ms McGrady asked me to consider the contribution the complainant made to his dismissal.  He accepts that the invoices for parts he ordered were not paid for.  His employer had lost trust in him and his dismissal is the result of a breakdown in their relationship.   At the meeting on May 15th, the complainant walked away, and there was no further discussion.   

The complainant commenced working for the respondent in April 2013, and, until he was dismissed in May 2021, he had a clean disciplinary record.  The complainant lived near the garage, and, to oblige the respondent, outside normal working hours, he would open the garage to facilitate customers collecting their cars.  The complainant was paid €100 in cash every week and €550 gross which was paid by bank transfer. 

In addition to his regular wages, the complainant earned approximately €300 to €400 a week doing nixers.  In his submission, Mr Long stated that, at the suggestion of the respondent, he and the complainant agreed that he would use the garage to do nixers outside normal hours.  It was also agreed that the complainant would use the respondent’s account to purchase car parts and tools.  Under this arrangement, the complainant would retain invoices and would reimburse the respondent for any expenses that were incurred by his nixer business. 

On May 7th 2021, the complainant contacted the respondent and told him that he was a close contact of a person who tested positive for Covid-19.  On Friday, May 14th, he sent the respondent a text message saying that he hoped to be back at work on Monday, May 17th.  On Saturday, May 15th, the complainant’s daughter tested positive and he notified the respondent that he would need to remain out of work.  The respondent replied that he was busy and that he would be in touch later.  On the afternoon of May 15th, the respondent sent the complainant a message and asked him to meet him at the garage.  Due to Covid-19 restrictions, they met outside the premises.  The respondent alleged that the complainant had misappropriated goods for his own use and the complainant was summarily dismissed on the spot.

On May 27th, the complainant received a letter confirming his dismissal.  The letter referred to the “gun incident” in August 2019 and the “unauthorised pledging of our credit with suppliers resulting in a financial loss to the business.”

The next day, May 28th, the complainant sent a detailed letter to the respondent in which he suggested that they should meet to resolve the issues amicably.  He said that the respondent had produced no evidence to justify his summary dismissal and that fair procedures had not been followed.  The respondent did not reply and, on July 6th 2021, the complainant’s solicitor submitted these complaints to the WRC.

On September 12th 2021, 17 weeks after he was dismissed. the complainant commenced in a new job, earning higher wages than what he earned with the respondent.  He is seeking compensation of €8,650.52 in respect of what he claims was an unfair dismissal.  Referring to the High Court decision in Brady v Minister for Social Protection[3], Mr Long said that the complainant also seeks compensation for the loss of his earnings of €300 to €400 per week from his nixer business.

The Complainant’s Case that his Dismissal was Unfair

The complainant’s case is that his dismissal was procedurally unfair.  He was not given an opportunity to respond to the allegation that he had pledged the respondent’s credit.  Mr Long referred to the decision of the Labour Court in July 2017 in Panasov v Pottle Pig Farm[4], where it was held that a failure to give an employee the opportunity to advance a defence takes the decision to dismiss outside the range of reasonable responses:

“The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.”

Aside from the fact that the complainant was not given an opportunity to defend himself, he was not told that he was going to be attending a disciplinary hearing on May 15th 2021.  He was not informed that he was under investigation and he was unaware of the allegations against him.  In view of these “egregious procedural defects,” Mr Long submitted that the decision to dismiss the complainant was unfair.

In dismissing the complainant, the respondent was the investigator, the decision-maker and the administrator of the penalty and this also makes the dismissal unfair.  Mr Long referred to the decision of my colleague, Ms Gaye Cunningham, in A Security Guard and a Residential Centre[5], in which she set out the principle as follows:

“I note the serious nature of the charges against the Complainant, and he did not help his case by declining to provide any defence.  However, the fact that the same Manager conducted the investigation and disciplinary hearings and administered the penalty is a flaw in the process.  It has long been established that there should be a separation of these steps in any disciplinary process to ensure natural justice.”

Finally, the complainant was not afforded a right of appeal and, although the reason for the complainant’s dismissal is set out in the letter of May 27th 2021 from the respondent, Mr Long argued that the employer’s decision was not communicated to the complainant.

Substantial Grounds

Mr Long referred to section 6(1) of the Act of 1977, and the responsibility on the employer to show that there were substantial grounds justifying the dismissal of the complainant.  The letter of dismissal states that the respondent dismissed the complainant for three reasons:

1.              The complainant’s “engagement of nixers;”

2.              “An incident at our premises wherein a customer of yours produced a gun;”

3.              “Due to your unauthorised pledging of our credit with suppliers.”

 Mr Long submitted that the letter of dismissal does not allege any misconduct and, that, if it is the respondent’s case that the complainant was dismissed on the grounds of misconduct, he may not advance such a case on the facts set out.  Further, the respondent is not permitted to advance any new grounds to justify the complainant’s dismissal which are not recorded in the dismissal letter.  For this reason, the allegation that the complainant retained a payment of €400 from a customer cannot be retrospectively inserted into the dismissal letter.

In relation to the first reason for dismissing the complainant, it was agreed between the respondent and the complainant that he could use the garage to do work on his own behalf.

In relation to the gun incident, this occurred in August 2019, and could not have been the operating cause of the complainant’s dismissal.  Also, the complainant cannot be expected to be responsible for the conduct of a customer.

In relation to the third reason for dismissal, the allegation of pledging of credit, the complainant had an arrangement with the respondent to use his business account and to reimburse him when he did so.  This was a long-standing arrangement and within the bounds of the nixer agreement.  Several invoices on which the respondent relies are for costs he incurred himself and others relate to parts which were returned.

Mr Long argued that none of the grounds set out disclose substantial grounds for a finding of gross misconduct.  He claimed that the respondent’s decision to dismiss the complainant was precipitated by his absence due to adherence to Covid-19 restrictions.   

Evidence of the Complainant

In response to questions from Mr Long, the complainant said that he was allowed to use his employer’s garage to do nixers and that he ordered parts from the suppliers that the respondent used.  When he ordered the parts, he paid for them in cash when they were delivered, or he paid with his credit card, or he paid cash to the respondent.  He said that his customers were “anyone and everyone” and that he would offer “company jobs” to the respondent.

Responding to questions about the job he did on Mr Mooney’s car, the complainant said that the garage was closed at the time and he assumed that he was helping out by fixing the car.  He said that he didn’t pay the respondent, because he hadn’t been in work for about 20 days.  He said that the part for Mr Mooney’s car was €20 and the cost of labour was €100.  He said that he would never have charged €400 for this job.  The complainant referred to an invoice in the respondent’s book of documents which is dated May 1st 2021.  The invoice is for a part costing €25.50 plus VAT of €5.82.  The complainant said that this is the part for Mr Mooney’s car.

The complainant then referred to another invoice in the respondent’s book of documents, showing three parts ordered on February 11th 2021.  He said that one of the parts listed, costing €160.96, was returned to the supplier, because his customer didn’t bring his car back to be repaired.  He said that the respondent was reimbursed for this amount, but that he is still being held liable.  He said that he got a copy of the 26 invoices after he was dismissed.  He said that he is responsible for 70% of the goods ordered.  He said that he is at a loss to explain the respondent’s estimated loss of €4,797.

The complainant said that he knows nothing about the gun incident and that it could be clarified by reviewing the CCTV in the garage.

The complainant said that the last day he worked in the garage was the first Saturday of May 2021.  He was then a close contact of someone with Covid-19 and he remained out of work.  Two weeks later, he got a text message from the respondent to ask him to meet him at the garage.  They stood outside the garage and the respondent alleged that he had ordered parts using his account and he told him about finding the invoices.  He asked him about the payment for the job on Darren Mooney’s car.  The complainant said that he told the respondent that “the few bob is in the house.”  He said that he found the confrontation embarrassing and he was annoyed with the way things were happening.  The complainant said that the respondent told him that he couldn’t trust him and that he didn’t want him working in the garage.  He asked him for the keys of the car he was using.

In response to a question from Mr Long about a set of Bluepoint tools which the respondent alleged the complainant didn’t return, and the keys of the garage, the complainant said that he never borrowed the tools and that he dropped the keys into the letter box at the garage.

Cross-examining of the Complainant

Cross-examining the complainant, Ms McGrady suggested to him that he knew that he had to pay for parts that he ordered for his nixers, but that he didn’t pay for them.  The complainant replied, “that’s right.”  Ms McGrady said that the complainant didn’t hand over the money given to him by Mr Mooney, and the complainant replied, “Mark wasn’t there.”  He said that he brought the money home, saying, “what else was I to do?”

The complainant said that the invoices were not hidden, and that they were in a toolbox.  Referring to the starter motor listed on an invoice dated February 11th 2021, the complainant said that the respondent told him that he returned it to the supplier. 

Ms McGrady referred to the respondent’s evidence that he gave the complainant an opportunity to pay for the invoices and that he gave him a copy of the invoices when he called to the garage to collect his personal property.  Asked why he didn’t pay for the parts he used for his nixers, the complainant said that he has a few issues with items for which he is out of pocket.

Summarising the complainant’s case, Mr Long said that the invoices do not establish that the parts were not paid for.  He said that his side has not seen a statement of accounts and the respondent has not been able to establish that all the parts ordered were not paid for. 

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that,

“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.”

It is apparent from this that every dismissal is unfair until the employer demonstrates otherwise.  The burden of proof therefore rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. 

Section 6(4)(b) of the Act provides that,

“…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 …the conduct of the employee.”

While the responsibility for proving that a dismissal is not unfair rests with the employer, the legislation recognises the right of an employer to dismiss an employee for conduct that, considered by another reasonable employer in the same circumstances, is unacceptable or unreasonable[6]. 

It is the respondent’s case that the complainant was dismissed, firstly, because of the incident in August 2019 when a customer for whom he did a job as a nixer came to the garage and threatened to shoot him.  The second cause of dismissal was the fact that the complainant charged parts that he used for his nixers to the respondent’s account with his supplier.  In the course of the hearing, the respondent referred to the complainant’s failure to hand over a payment received from a customer, Mr Mooney, for work that the complainant did on his car on May 1st 2021.  While a reasonable employer might consider this as misconduct, it was not mentioned in the dismissal letter issued by the respondent on May 27th.

In every complaint of unfair dismissal, there is a balance between substantive and procedural justice and it is my role to determine if the cause put forward by the respondent was reasonable and if the procedures were fair.  Section 6(7) of the 1977 Act emphasises the importance of fair procedures:

(7) 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.

Section 14(1) refers to the obligation on an employer to provide an employee with a written copy of the procedure that will be used “before and for the purpose of dismissing the employee.”  In the case of this complainant, no such procedure was provided to him. 

Section 7(2) provides for a determination of the amount that may be awarded in redress. 

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.

While the respondent’s position is that the dismissal of the complainant was not unfair, Ms McGrady asked me to have regard for section 7(2)(b) and (f) above.  It is the respondent’s case that the complainant contributed 100% to his dismissal and that the compensation should be nil.  In this regard, Ms McGrady referred to the decision of the Labour Court in Smurfit Kappa Ireland Limited v Nicholas Foran[7] as a precedent for making no award. 

Was it Reasonable for the Respondent to Dismiss the Complainant?

The respondent is a small business mechanic with one or two employees and he hasn’t got the services of a HR advisor.  It is evident that, in advance of dismissing the complainant, he didn’t get legal advice.  The letter of dismissal is unclear and gives the impression that the fact that the complainant did nixers on his own account was part of the cause of his dismissal.  Also, the letter omitted the payment from Mr Mooney which precipitated the respondent’s investigation into the complainant’s conduct.  It is apparent from the fact that Mr Mooney was called by the respondent to give evidence about this at the hearing, that it was a contributing factor.

It is my view that the gun incident cannot be relied on as a cause of dismissal because it occurred in August 2019.  As he took no action about this incident at the time, it cannot be retrieved in the mind of the respondent to bolster the reasons for dismissing the complainant 19 months later.  As the letter of dismissal makes no mention of Mr Mooney’s payment, I have decided to narrow the cause of dismissal to the fact that the complainant used the respondent’s account to purchase parts for his nixer jobs, that he did not tell his employer that he had purchased the parts and that he did not pay for them.  The 26 invoices submitted by the respondent indicate that the complainant spent about €6,000 on parts between 2018 and 2021, although the respondent could not say if one part to the value of about €160 was returned to the supplier.  Aside from the parts listed on the invoices, at the meeting outside the garage on May 15th, the complainant said that he couldn’t prove that he paid for oil, coolant, wipers and bulbs used on his nixers and the respondent estimated the cost of these at approximately €5,000.

In his evidence, the complainant agreed with Ms McGrady that he knew he was supposed to pay for the parts he ordered for his own jobs but that he didn’t pay for them.  When she asked him why he didn’t pay for the parts, he said that he had a few issues that he is out of pocket for.  It is apparent therefore, that the complainant does not dispute his employer’s finding that he used his account to purchase car parts for his own jobs without paying him for the parts.

Ms Mc Grady referred to the Labour Court decision in Dunnes Stores v Karen Walsh (footnote 1).  Ms Walsh was a restaurant manager in a Dunnes branch and she was dismissed for consuming food on the premises without paying for it.  She offered a range of reasons for not paying including that she had forgotten to pay and that she intended to pay later.  Considering the reasonableness of the respondent’s decision to dismiss Ms Walsh, the Court stated,

“Taking account of the nature of the Respondent’s business and the trust that must exist between employer and employee in such an environment, the Court finds that in the circumstances it was reasonable for the Respondent to treat the admitted removal of goods from the store without payment as being very serious.”

In the case under consideration here, the complainant was in a position of trust, holding the keys to the premises and having access to his employer’s account to purchase parts.  He was permitted to use his employer’s premises to do business for his own benefit.  The discovery by the respondent that the complainant used the suppliers account to purchase parts without paying for them must have caused him to lose trust in him and to decide that their relationship was at an end.  However, having made the discovery about the use of the account, the respondent gave the complainant an opportunity to prove that he had not used the parts for his own business, or, to pay for the parts.  Regrettably, the complainant did not avail of either option.  Taking my authority from the decision of the Labour Court in the Dunnes Stores v Karen Walsh decision which I have referred to above, I find that the sanction of dismissal was a reasonable response which might be expected of another employer in the same circumstances.

Was the Process Fair?

In his evidence, the respondent agreed that he dismissed the complainant “on the spot” on May 15th 2021.  Clearly, little or no proper procedures were followed.  I accept that the respondent asked the complainant to meet him and he gave him an opportunity to state his case.  However, this was in circumstances where the complainant wasn’t notified of the purpose of the meeting.  He also wasn’t informed of his right to be represented and he had no disciplinary procedure to refer to.

While the complainant may have been summarily dismissed, his dismissal was not confirmed until 12 days later on May 27th.  He could have used the time between May 15th and 27th to provide a more comprehensive explanation for his actions, or to reimburse his employer for the parts he used.  For reasons of his own, he didn’t avail of the opportunity presented by the time between the meeting and the confirmation of his dismissal. 

I note the findings of the Labour Court in Panasov v Pottle Pig Farm case (footnote 5) which was cited by Mr Long and I agree that the respondent’s failure to follow fair procedures “takes the decision to dismiss outside the range of reasonable responses.”  While I fully understand the circumstances of the respondent, being without professional assistance, I must find that the process that ended with the complainant’s dismissal was far from what is generally expected of a reasonable employer.

Conclusion

The balance between the reasonableness of the decision to dismiss an employee and the reasonableness of the procedures is not an even one.  In my task to decide on this matter, I must take account of all the circumstances, including the seriousness of the complainant’s conduct, the breach of trust between him and his employer and the unsophisticated employment scenario.

I note the reference by the respondent’s side to the decision of the Labour Court in Smurfit Kappa v NicholasForan (footnote 3) where the Court found that it could “…not be satisfied that the process used by the Respondent was fair or that it met the most basic of requirements.”  Mr Foran was dismissed because he assaulted a work colleague, but arising from the flawed procedures, the Court determined that his dismissal was unfair.  Due to his conduct, he was not awarded any compensation.

Having listened to the evidence at the hearing, and, taking account of the submissions and the legal precedents presented by both sides, I find that the respondent had reasonable cause to dismiss the complainant, but that, because of his failure to follow fair procedures, the dismissal was unfair.

Considering the issue of redress, I note the complainant’s submission that he started a new job four months after he was dismissed and he claims that his loss of earnings was €8,650.  The complainant did not adequately explain why it took so long to find a job, in the circumstances when mechanics were and continue to be in high demand.  As the complainant did not avail of the opportunity presented to him to pay his employer for the products he used for his nixer business, I find that he has been adequately compensated for any loss of loss of earnings arising from his dismissal.

I decide that the dismissal of the complainant was unfair.  In accordance with section 7(2(b) of the 1977 Act, taking account of the extent to which the complainant’s loss of earnings was attributable to his own actions, I make no award of compensation.

The complainant said that he did not receive a written statement of his terms and conditions of employment.

The respondent did not dispute the complainant’s claim that he was not issued with a statement of his terms and conditions.

Section 3 of the Terms of Employment (Information) Act was amended by the Employment (Miscellaneous Provisions) Act 2018, resulting in a new obligation on employers to provide a written statement of certain terms and conditions of employment within five days of an employee’s start date.  In the case of this complainant, he commenced work with the respondent in 2013.  Therefore, the un-amended provisions of section 3 of the Act apply and he was entitled to a written statement of his terms and conditions within two months of his start date.  Generally written up in the form of a contract, these statements are to include the following:

(a)  The name of the employer and the employee;

(b)  The address of the employer;

(c)  The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d)  The job title or the nature of the work that the employee is required to carry out;

(e)  The date that the employee commences in the job;

(f)  If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g)  The rate or method of calculation of the employee’s pay;

(h)  The frequency of pay;

(i)  Any terms or conditions relating to hours of work (including overtime);

(j)  Any conditions relating to paid leave (other than paid sick leave);

(k)  Any terms or conditions relating to –

       (i)  Incapacity for work due to sickness or injury and paid sick leave;

       (ii)  pensions and pension schemes;

(l)  The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m)  Details of any collective agreement which affects the employee’s terms and conditions of employment.

The complainant’s evidence is that he did not receive a statement of his terms and conditions of employment and the respondent accepted this failing. 

I refer to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare[8], where Ms Hayes Kelly claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment.  In his determination on the case, the Chairman, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.  As the failure to issue any statement of terms and conditions of employment must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the case under consideration here.

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €2,640, equivalent to four weeks’ pay.  This award is made by way of compensation for a breach of a statutory entitlement and is non-taxable.

As he was dismissed without notice, the complainant claims that he is entitled to four weeks’ pay lieu of notice.

The respondent’s case is that the complainant was dismissed because of gross misconduct and that he was not entitled to notice or pay in lieu of notice.

As I have concluded that the complainant was unfairly dismissed, I must therefore find that he was entitled to notice.  He was in the employment of the respondent for more than five years and less than 10 years and he was entitled to four weeks’ notice. 

The complainant is entitled to four weeks’ pay in lieu of the fact that he was dismissed without notice.  Based on his gross pay of €660 per week, I decide that the respondent is to pay him compensation of €2,640 gross, equivalent to four weeks’ pay.  This award is made by way of compensation for a breach of a statutory entitlement and is non-taxable.

Dismissal, breach of trust, theft