Complainant

Respondent

Parties

Donatas  Ragelis

N Smith & Sons Limited Trading as Ford Smiths of Drogheda

Representatives

Adrian Carey,  Michael Kelleher Solicitors

Grahame Pickett, Grahame Pickett Consultancy

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-00048661-001

16/02/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the complainant gave their evidence under affirmation.  Three witnesses for the respondent gave their evidence under affirmation.  The interpreter provided translation under affirmation.  A member of the public was facilitated with attendance at the hearing.

As a preliminary matter the respondent indicated that they had video evidence in relation to an alleged contravention of its policies. As the matter shown on the video was not disputed and the poor quality of the video was indicated in advance, the video evidence was not regarded as being central to this case given that oral evidence of the parties was being adduced. Accordingly, the video evidence was not put forward.

The respondent submitted that it had video evidence that the complainant removed an item from its stock. The respondent submitted that although the complainant submitted that this was done by mistake, this was not accepted by the investigation into the matter.  A subsequent disciplinary hearing took place, and the complainant was dismissed for gross misconduct.

The respondent submitted that the appeal submitted by the complainant was received after the deadline for receipt of such documentation.

The respondent’s first witness, the bodyshop manager stated that he had 20 years plus of experience.  He stated that on 14 October 2021 a part was delivered (a new back bumper for a particular make of car) and the box was placed outside a 40-foot container. On 26 October the client's car came in for repairs and when the part was not found, the CCTV footage was looked at.

The witness stated that the footage showed two recovery drivers loading the part into a flatbed pickup truck. A call was placed to the complainant who said he hadn't seen it and that he hadn't taken it from the premises. The witness stated that it was put to the complainant that he was seen on CCTV loading up the box into a pickup truck.  The witness stated that the complainant was told to bring the part back but indicated that it wasn't him but that it was his colleague. The witness stated that he went to the managing director to explain the events of that morning. There were no conversations with the complainant at this stage and he was asked to arrange a meeting with the complainant to get details.

The witness stated that at the investigative meeting, the complainant refused to give a verbal account at the start of the meeting but instead handed in a written note. The witness said that by all appearances the box looked sealed and that if it was open on the other side the part would have fallen out. The witness said he was aware that the complainant was taking empty boxes but never gave permission for him to take anything. Under cross examination the witness confirmed that nearby to where the part was located there was a bin area, but he indicated that boxes were normally folded for bailing.  The witness confirmed that when the part was returned, he took it from the complainant.

The witness said that he was appointed to investigate the matter and confirmed that there was no policy document to refer to for disciplinary procedures. He confirmed that no document containing the allegations was given to the complainant. He confirmed that the allegation was not set out for the complainant and that it was not mentioned to him that he was accused of theft. He confirmed that the complainant was not notified that dismissal was a possibility.

The witness confirmed that the complainant just read out the statement.  The complainant’s representative put it to the witness that he did not establish all the facts he didn't interview the other employee involved and furthermore that there was no close up of the box on the CCTV.

The second witness for the respondent was the HR manager who attended the investigation meeting as note-taker.  She stated that the complainant initially refused to engage with the investigation although he had a written pre-prepared statement with him. She indicated that the complainant never had a problem with language or communication before. She indicated that the complainant indicated that he thought the box was empty and that it was a mistake.  The witness confirmed that that the complainant was uncooperative at the beginning of the meeting but towards the end, following an explanation, he was aware of the purpose of the meeting.  The witness confirmed that perhaps she should have outlined the purpose of the meeting at the beginning.

Under cross examination the witness confirmed that the disciplinary process was not set out in writing and that the purpose of the meeting was to give him the opportunity to present his case. She confirmed that the complainant was not told that his dismissal was an option. She noted that she felt it was rude and ignorant to only give a written statement and not to verbally engage with the investigation.

The third witness for the respondent was the managing director. He outlined that the business was a dealership with a repair shop and recovery service. He noted that part delivered was a large rear bumper and this was visible on the video which also confirmed it was being driven out of the premises by two employees. He confirmed the employee was invited to an investigation meeting to give him the opportunity to outline his position. He said he wanted to have an open mind and to come to a decision he took the time to read the investigation which was slightly delayed as there were missed calls on the part of both parties. He said as part of his disciplinary meeting where the complainant was let go, he was told that he had a seven-day period to appeal. This was given to him in writing.  No appeal was received within the period and the complainant was dismissed

In cross examination it was put to the MD that no allegations against the complainant were set out.  It was also put to him that no disciplinary procedures were followed. The MD said that the terms and conditions of the complainant’s employment were fully set out in his contract.  It was put to him that it looked like the complainant was suspended but was given no written notice of suspension and no verbal notice of suspension. It was put to the witness that procedure was not impartial however he indicated that in terms of the investigation he asked the investigating manager to keep an open mind.  He also said he was not aware that the employee was taking boxes. The MD was asked whether he considered that the employee had simply made a mistake he said he considered it but judged the incident to amount to be gross misconduct.

The MD indicated that subsequently the parts side of the business were subcontracted out as it was not commercially viable. He also indicated that he felt that the complainant was going into business for himself and that subsequently the complainant was operating a car parts business.

By way of closing submissions, the respondent submitted that the complainant was not given permission, or at least no explicit permission to remove boxes and was given no specific permission to remove boxes that contained any items.  It submitted that the allegations against the complainant were clear although it was accepted that they were not in writing.  The complainant did not appeal the matter in the timeframe given and was he was offered the right to be accompanied.

The respondent submitted that there is no dispute that the box was removed but also the part was returned subsequently. The respondent indicated that he was not allowed the opportunity to question the complainants and therefore to put it to the complainants that they had established a car parts company.  The respondent submitted that it was not established that the box was beside the bin area.

The  respondent submitted that in terms of mitigation there was a serious question to be answered, given that the contention is there, from the respondent that the complainant has been operating in business since the day of his dismissal and that accordingly he has not operated with any loss.

In written submissions, the complainant accepted that he loaded a part (contained in a box) onto a pickup truck.  He accepted that it was a 7.4 kg box with the 3.5 kg part but submitted that this was done in error.

The complainant submitted that the facts of this case are accepted, the complainant discovered that the box that he took contained a part following a phone call. This case is concerned with the fairness of the dismissal, the policy was totally inadequate and not followed. The complainant is entitled to a right to fair procedures and there was a failure to investigate the allegations or to set them out in writing to the complainant.

The complainant submitted that the respondent failed to follow the code of practice and must comply with the fairness element of the code.  The complainant submitted that there was a failure to allow him to know the allegations against him and the investigator was also the person who made the original complaint against him.

The complainant submitted that all of this happened in plain sight and that once the mistake was realized the part was returned.  The respondent should have adhered to fair procedures as the complaint is criminal in nature the highest standards must be upheld.

The complainant is seeking compensation for unfair dismissal.

When it came time to hear the evidence of the complainant and his witness, the complainant’s representative indicated that he did not wish to bring his witnesses through any evidence.

The respondent accepted that there were no written procedures followed, that no allegations were put to the complainant in writing and that the investigator of the circumstance was the first person to report the incident.

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

Section 6(4) of the Act states that:

(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.

Section 6(7) of the Act states that:

(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.

The Code of Practice on Grievance and Disciplinary Procedures outlines the steps that an employer is required to take.  Section 10 of the Code states as follows:

Disciplinary action may include:

·       An oral warning

·       A written warning

·       A final written warning

·       Suspension without pay

·       Transfer to another task, or section of the enterprise

·       Demotion

·       Some other appropriate disciplinary action short of dismissal

Dismissal.

Section 11 states that:

Generally, the steps in the procedure will be progressive, for example, an oral warning, a written warning, a final written warning, and dismissal. However, there may be instances where more serious action, including dismissal, is warranted at an earlier stage. In such instances the procedures set out at paragraph 6 hereof should be complied with.

Section 6 of the code outlines the steps to be followed by an employer:

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, circumstances.

Section 3 of the code indicates that disciplinary procedures should be in writing and should be in a language and format that is easily understood.  Having regard to the written and oral evidence in relation to this complaint, I note that the allegations were not put to the complainant and that he was not given the opportunity to fully respond to the allegations.  Additionally, I am not satisfied that an initial procedure conducted by the person taking the complaint complies with the right to a fair and impartial determination of the issues.

Section 6(4)(c) of the Act states that an employee may be dismissed due to his conduct and that it may not amount to unfair dismissal.  However, Section 6(7) notes that regard may be had to the compliance or otherwise with the Code of Practice.  Given the respondents failure to adhere to the code or any disciplinary policy and arising from my consideration of all the matters, I find that complainant was unfairly dismissed.

The complainant has made no effort whatsoever to establish that he suffered a financial loss or to establish that he made any attempt to mitigate any such loss.  His submitted in writing that his gross weekly salary was €597.00

Section 7(1) of the Unfair Dismissals Act states that

(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,

Having regard to Section 7(1)(c)(ii) of the Act and in the circumstances, including the respondent’s failure to adhere to the code or abide by any written policy, I consider that compensation of €2000 is just and equitable having regard to all the circumstances.

Having regard to the written and oral evidence in relation to this complaint, my decision is that the complainant was unfairly dismissed, and I award the complainant. compensation of €2000 which I consider to be just and equitable in all the circumstances of the case.

Unfair dismissal – lack of written procedures – Code of Practice – lack of disciplinary policy – failure to adhere – unfair dismissal – no financial loss established – compensation awarded.