Complainant

Respondent

Parties

Martynas  Gelazius

N Smith & Sons Ltd

Representatives

Adrian Carey, MKS - Michael Kelleher Solicitors

Grahame Pickett Consultancy

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-00048076-001

10/01/2022

The complainant commenced with the respondent on 1 July 2005 and was employed as a recovery vehicle operator. The complainant states that he was dismissed on 5 November 2021. The complainant states that he is of the view that his dismissal was unfair and was motivated by a desire on the part of his employer to discontinue its recovery service without paying redundancy to the relevant operatives.

The complainant asserts that no grounds exist to justify his summary dismissal. It was submitted that the respondent, in its letter terminating employment, states the grounds for dismissal as "gross misconduct'. The complainant's position is that he was dismissed without any proper investigation having taken place. He was dismissed without being afforded an opportunity to put forward a reasoned reply and without his input being given appropriate consideration. There was no proper or fair procedure implemented prior to the complainant's dismissal. The complainant submits that any decision to dismiss is the ultimate sanction and should only be taken as a very last resort.

In addition, it was submitted that the respondent failed or refused to consider a range of alternative options short of dismissal. The complainant asserts that the respondent failed or refused to follow its own disciplinary policy. Section 6(7) of the Unfair Dismissals Acts provides that in determining whether a dismissal is an unfair dismissal, regard may be had to: the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and 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 (l) of the Act or with the provisions of any code of practice..

The complainant states that he was not given any or any adequate opportunity to know the allegations of misconduct alleged against him. He states that he was not given an adequate opportunity to respond to allegations raised against him by his employer. The respondent failed or neglected to implement a proper investigation and disciplinary process. The respondent arrived at a decision to dismiss without implementing a fair or proper procedure. The respondent failed or refused to allow the complainant the opportunity to be heard. The respondent failed or refused to consider adequately or at all the complainant’s evidence. The respondent failed or refused to allow the complainant to be represented or accompanied. It was inappropriate to dismiss the complainant prior to a fair and proper investigation and hearing taking place. The respondent failed or neglected to fairly and impartially establish all the facts of the case. The respondent failed to take account of the role of another employee. The respondent failed to take account of the fact the alleged part was taken unbeknownst to the complainant. The respondent failed to take account of the complainant's cooperation and assistance. The respondent failed to take account of the complainant's good work record over a period of 16 years. The respondent did not give fair or adequate value to the complainant's responses. The respondent failed or neglected to take account of the fact it authorized employees to take boxes and other items left by the bins and the fact another employee had removed a part without the knowledge of the complainant.

The complainant states that the respondent failed or neglected to follow the WRC Code of Practice, SI 146 of 2000. It was submitted that the respondent has failed to demonstrate why dismissal was necessary or why a sanction short of dismissal would not have sufficed.

The complainant submitted that the right to earn a livelihood can only be taken away if the procedure followed is clearly lawful and fair. In considering the question as to whether the respondent acted fairly, properly and justly in reaching a decision to dismiss the complainant, regard must be had to the reasonableness of the employer. In Hennessy v Read & Write Shop Ltd (UD 1 92/1978) the EAT set out their test of reasonableness as follows: (i) the nature and extent of the enquiry carried out by the complainant prior to the decision to dismiss the claimant, and (ii) the conclusion arrived at by the complainant that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.

It was submitted by the complainant that the 'band of reasonableness test' requires the respondent to act as a reasonable employer. The test was set out by Mr Justice Noonan in the High Court case of The Governor and Company of Bank of lreland -v James Reilly (2015) IEHC 241, para. 38: "It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer 's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

The complainant states that taking into account the unreasonableness of the respondent's conduct and serious shortcomings in the disciplinary process, the decision to dismiss did not come within a band of reasonable responses. It was submitted that dismissal was a disproportionate response and the matter could reasonably have been dealt with in a fair manner. The complainant submits that the combination of the unreasonable conduct by the respondent, flawed procedures and a disproportionate penalty combine to render his dismissal unfair.

The respondent states that the complainant commenced with the company on 1 July 2005 and was employed as a recovery vehicle operator. The complainant was employed as one of two recovery vehicle operators. His duties and responsibilities included on call vehicle recovery as instructed by motor insurance companies. The complainant worked back to back with his colleague D on a self covering basis. The respondent asserts that sometime after 10.00 am on 26 October 2021, the company’s accident repair technician was in the process of carrying out body repairs to a skoda octavia car which involved the replacing of a bumper. It was submitted that the bumper was ordered in specifically for this job and was booked into stock and placed in the designated body parts location. The respondent contends that when the technician went to commence the job in question, he could not find the body part and reported it to the repair centre manager Mr. C and told him that the part was missing.

Mr C checked with the parts department and several other members of staff. The respondent states that at approximately 13.50 Mr. C phoned the complainant and asked him about the part but the complainant denied he had any knowledge of its whereabouts. The respondent maintains that as a last resort Mr C requested the CCTV cameras for 14 October to be checked and the complainant and his colleague D were clearly seen loading the box containing the bumper onto the back of a tow truck. The respondent states that Mr. C phoned the complainant again at approx. 15.30 and this time told him that he could be seen with his colleague D loading the box onto the truck. Mr C instructed the complainant to return the bumper. It was submitted that D returned the bumper without the box to the premises at about 16.30.

The respondent asserts that on 27 October, the managing director Mr S met with the complainant in the yard and advised him that the matter was very serious to which the complainant replied “I know”. Mr S advised the complainant that he would arrange a meeting later and advised him that if he wished he could have a colleague accompany him. It was submitted that at 16.30 pm Mr S along with the HR manager Ms M met with the complainant in the boardroom at the company premises. It was submitted that the complainant attended alone. The respondent states the Mr S again advised the complainant of the seriousness of the matter and that the actions of the complainant and D were unacceptable and could constitute gross misconduct. The respondent states that the complainant said it was not him and said “it was D {my emphasis}”. The respondent asserts that the complainant claimed he thought the box was empty to which Mr S pointed out that he must have known that there was something in the box by its weight and the fact it was still sealed.

It was submitted that the complainant asked was he being fired for theft to which Mr S responded that he was being sacked for gross misconduct because of theft. The respondent states that the complainant requested this in writing and Mr S said he would provide a written statement within a week. It was submitted that the complainant refused to sign or to receive a copy of the minutes of the meeting on 27 October. The respondent submits that on 5 November Mr S emailed the complainant confirming the company’s decision and offered the complainant the opportunity to appeal the decision with five days. The complainant did not submit an appeal within the designated period.

The respondent submits that the bond of trust with the complainant was broken as a result of the incident. It further stated that due to the serious nature of this incident, the matter was reported to the Gardai. The respondent states that it had not given permission to the complainant or any other employee to remove items from its premises. It states that the complainant was clear of the allegations against him and was given adequate opportunity to respond to these allegations. It was submitted that the complainant was given the option to appeal but failed to do so. It was submitted that the complainant was offered the right to be accompanied at the disciplinary meeting and chose not to avail of this option. It was submitted that the allegations were presented to the complainant  and he did not dispute that he was involved in the removal of the box.

The respondent asserts that it is not disputed that the complainant and his colleague D are jointly involved in a separate business where they buy and sell spare parts for export. It was submitted that the complainant denied any knowledge of the box until he was confronted with the video evidence. The respondent contends that it is not credible or plausible after so many years in the business that the complainant would have thought the box was empty. The respondent argues that there are substantial grounds justifying dismissal. The respondent states that it was satisfied that the complainant knowingly removed company property without authorisation. The respondent states that theft is an act of gross misconduct and there can be no other option available to the company but dismissal. The respondent states that its actions were reasonable and proportionate.      

Section 6(1) of the Unfair Dismissals Act provides:

“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 Unfair Dismissals Act provides:

“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:…

(b) the conduct of the employee…”

In the case of Looney and Co v Looney UD843/1984, the EAT stated the following:

‘It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is 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 decisions are to be judged’.

In the case of Allied Irish Banks v. Purcell [2012] 23 ELR 189, Linnane J commented as follows:

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

This was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229.   It has also been referred to with approval in the Supreme Court by O’Donnell J in Ruffley v Board of Management of St Anne’s School [2017] 2 IR at paragraph 41.

The respondent has asserted that the complainant was dismissed on grounds of gross misconduct. It states that theft is an act of gross misconduct and there was no other option available to the company but dismissal. 

I note from the testimony of the Mr S (MD of the respondent) that he felt given the serious nature of the matter, he reported the incident to the Gardai. Mr S also stated that as a result of the incident, the bond of trust had been broken between the complainant and the respondent.

While I note that it was raised at the hearing that it was custom and practice for the complainant’s colleague to take home the empty boxes at the garage; I find the complainant’s evidence wherein he stated that “he thought the box was empty” to be highly implausible given the sequence of events and the CCTV footage relating to the incident.

I note from the evidence heard at the hearing that the complainant and his colleague D are jointly involved in a separate business where they buy and sell spare parts for export.

Based on all the circumstances in the within claim, I find that the respondent did not conduct an adequate investigation into the matter, I note that the complainant was summarily dismissed prior to the complainant’s colleague D being questioned about the matter. Based on the evidence, I find that the respondent did not follow its own procedures as laid down in its grievance and disciplinary policy. For that procedural reason, I consider that the dismissal of the complainant was unfair.

Notwithstanding the flaws in the procedures adopted by the respondent, I note that the complainant was found to have knowingly removed company property without authorisation from the respondent premises. I note that the complainant denied any knowledge of the box until he was confronted with video evidence regarding same. In all of the circumstances in the within complaint, I find that the conduct of the complainant contributed to the extent of 100% to his dismissal. 

I find that the complainant was unfairly dismissed. As I am satisfied that the complainant contributed 100% to his dismissal, I consider the amount of compensation which is just and equitable having regard to all the circumstances is nil.

Unfair Dismissal, gross misconduct