Worker

Employer

Anonymised Parties

An Apprentice

An Electrical Contractor

Representatives

 Peninsula

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

CA-00055120

03/03/2023

By way of a preliminary matter the complainant clarified that he described the complaint as constructive dismissal in error and his complaint related to his treatment prior to, and at the time the complainant was dismissed for allegedly falsifying his finishing times. 

He says that he only filled out his timesheets in that way on the advice of management and a colleague and that he was told to do so on numerous occasions.

The complainant  was contacted over a weekend, not within working hours and instructed to attend a disciplinary hearing and to bring his uniform.  He found  this email intimidating. He was refused his preferred representation at the disciplinary hearing.

The respondent did not set out in writing the reasons why he was being called to a disciplinary hearing and did not provide details or evidence of customer complaint. He was not given the opportunity to call a witness.

He says that he was not given a proper opportunity to present his argument and that the disciplinary meeting lasted only a few minutes and tool place in the owner’s home. He denies that he saidthereasonsformytimeswere‘Private&confidential’.

When he  arrived for the disciplinary meeting, his representative was refused entry and when he asked to reschedule the meeting and to be provided with all the documentation, this was ignored, and his uniform was aggressively taken off him .

No disciplinary meeting or dismissal meeting ever took place.  Over the nine weeks working with the respondent, he was constantly harassed and threatened with disciplinary action. He was not registered as an apprentice with Solas, and this has been reported.

The respondent is an electrical contractor. The complainant was employed as an apprentice electrician from  December 1st, 2022, to his dismissal for gross misconduct effective on February 7th, 2023. The complainant has lodged a complaint of constructive dismissal under the Industrial Relations Acts.

The complainant  was in a three-month trial/probationary period. His working hours were eight hours per day, thirty-nine hours per week, from 8:30am to 5pm, Monday to Friday.

The scheduling app used by the respondent clearly states start/finish time, job location, etc. The complainant  completed his timesheet through this app daily as soon as he finished work, together with Job Service Reports wherein he included his start/finish times every day.

In late January 2023, a client made an oral complaint concerning the complainant’s finish time on their site to the effect that the complainant had left the site early. Following this complaint, the respondent started an investigation the complainant’s time keeping and conducted sites visits more frequently. The following emerged from the investigation.

On three occasions, January 25th, 26th and February 1st, 2023, the complainant’s manager (NC) established that the site had been locked up early, and the complainant was not present.  He  claimed on his timesheet that he finished up on site at 5pm on all three.

It is worth noting that the complainant ’s behaviour regarding his actual start and finish times daily as opposed to the misleading information that he included in his timesheets became a pattern.

On 27.01.2023, the complainant  was invited to attend a ‘Progress Meeting’, which he did not attend. The following week, the complainant  alleged that the reason for non- attendance was that he was confused and did not understand the nature of the meeting.

It was rescheduled and went ahead on the February 3rd. NC went through the Apprenticeship Logbook and then questioned the complainant about his timekeeping, to which the complainant  replied that he was sorry and asked to deduct times from his pay.

In response to any other times apart from the three above dates given, the complainant  said that it was private and confidential. The respondent disputed this as he was giving misleading statements to the company and therefore, they had the right to know, to which the complainant  replied, “since the days were dark.” as when he started in December the days were dark.

On the February 4th, the complainant was invited to a disciplinary hearing on the 7th, at 9am  to which he confirmed attendance. He was advised that he would be given an opportunity to state his case as per company policies and procedures.

On that date, he arrived at 9am accompanied by his mother, and he was informed that she had to remain outside, as it was a family home, and the office was only a room upstairs. At this stage, he refused to take part of the Disciplinary Hearing without his mother as his  representative.

It is submitted that the complainant could be accompanied by a fellow employee or a TU representative, but not by his mother. Section 4f at page 43 of the Employee Handbook furnished to him states:

“other than for an “off the record” informal discussion, you have the right to be accompanied by a fellow employee or Trade Union Representative, who may act as a witness or speak on your behalf, at all stages of the formal disciplinary meeting. However, they are not there to answer questions on your behalf. In addition, in line with the Code of Practice for Disciplinary and Grievance Procedures, there is no provision for legal representation at any stage of the disciplinary process.”

The general principals of the Code of Practice for Disciplinary and Grievance Procedures – S.I. No. 146 of 2000, Industrial Relations Act, 1990, states:

4. For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.

Following this, the complainant was provided with the outcome in which was decided that “under the Disciplinary Rules & Procedures section, part E sub section part G, we will be terminating your employment with immediate effect 07.02.23, for gross misconduct within The respondent  Ltd.”

The complainant was liable to summary dismissal as he had acted to deliberately falsify records (including time sheets, absence records and so on, as per the Employee Handbook.

On the February 13th, the complainant  appealed the decision. Three days later, he lodged the complaint with the WRC, prior to the appeal being heard. The complainant’s appeal was conducted by Graphite, an external HR Consultancy Service, on a strictly impartial basis.

On the March 10th, the Appeal Meeting took place and on April 6th the Appeal Hearing Outcome was issued, which upheld the decision to terminated the complainant ’s employment for Gross Misconduct.

Therefore, it is submitted that the complainant  did not resign, and the claim lodged for constructive dismissal cannot prevail. Further or in the alternative, the complainant  was dismissed for reason of gross misconduct due to misleading/false information provided to the respondent as regards his timekeeping.

Therefore, the respondent submits that the complainant was primarily dismissed due to gross misconduct. Following principles of natural justice and fairness, the complainant  was provided with an investigation process and was afforded the right to representation and the right to appeal against the dismissal, according to guidelines set forth in the S.I. 146 of 2000, even though the complainant  decided not to engage in the Disciplinary Hearing without his mother as his representative.

In these circumstances, it is the respondent’s position that the investigation process was fairly and impartially conducted in line with the Disciplinary Rules and Procedures stated in the Employee Handbook, pages 43-47 as the complainant  was also afforded the benefit of proper process in the interests of natural justice in line with SI 146/200.

Notwithstanding the foregoing, should any flaws surrounding the investigation process and disciplinary procedures be verified in this matter, which is respectfully refuted, it is submitted that such issues do not necessarily negate the fairness of the outcome and could have been rectified in the Appeal Procedure if the complainant  had appealed the decision, which did not happen.

In support of its position, the respondent refers to Elia Erian Aziz v The Midland Health Board [1995] E.L.R. 48, where the Circuit Court held that:

“While a disciplinary body exercising quasi-judicial functions is bound to adopt fair procedures, a bona fide defect in the procedures adopted is not necessarily fatal to the legality of the ultimate decision made.

Where a defect in the procedure adopted or in the conduct of the proceedings is alleged, the applicant in order to succeed must establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done.

Accordingly, where there is no reasonable possibility that an injustice may have been done to the person under investigation as a result of the defect complained of, the decision is lawful and has the same effect as it would have had if no such defect had been found.”

The respondent refers to the case of Loftus and Healy -v- An Bord Telecom (13 February 1987, unreported, HC) where the High Court stated that the it was not simply a question of whether or not the employees were deprived of a fair procedure but rather “whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish … [the basis of its dismissal] as the whole or main reason for justifying their dismissal” and Pacelli -v- Irish Distillers (UD 57I / 2001) where the Tribunal stated that:

“…in determining this appeal, we must look at the substance of the complaint and beyond mere defects of form. Lavery J. in O'Mahony v. Arklow UDC [1965] I.R. 710 at p. 735, held that the Court should not, and in the respectful opinion of this Tribunal, the Tribunal should not: ‘…parse and construe rules of procedure in a narrow and unreal way, looking for some flaw in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.’

The respondent submits that the alleged denial of fair procedures did not change the outcome of the complainant’s termination due to the seriousness of the facts surrounding his dismissal. The respondent further relies on the seminal case of Looney & Co. Ltd. v Looney UD843/1984, (taken from Mary Redmond, Dismissal Law in Ireland) where the EAT 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.”

Barry v Precision Software Ltd. (UD 624/2005) [2006] 10 JIEC 1801, where the Tribunal said:

“[I]n determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissal Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal… It is not for the Tribunal to intrude into the Respondent's managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal's function is to decide whether the employer's reaction and sanction came within the range of responses, which a reasonable employer might make.”

Ultimately, the respondent submits that the complainant  was in the process of registering the company with Solas (which said application began in September 2022) and received his bank holiday as per attached pay slip. The claimant also admitted he received it at page 12 of the Appeal Meeting Minutes. It is therefore submitted that the within complaint is not well founded.

The respondent respectfully submits that should any compensation be awarded in this case; it should take into consideration the financial losses suffered by the complainant  as a result of his dismissal.

The respondent refers to the case of Loftus and Healy -v- An Bord Telecom (13 February 1987, unreported, HC) where the High Court stated that the it was not simply a question of whether or not the employees were deprived of a fair procedure but rather “whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish … [the basis of its dismissal] as the whole or main reason for justifying their dismissal” and Pacelli -v- Irish Distillers (UD 57I / 2001) where the Tribunal stated that:

“…in determining this appeal, we must look at the substance of the complaint and beyond mere defects of form. Lavery J. in O'Mahony v. Arklow UDC [1965] I.R. 710 at p. 735, held that the Court should not, and in the respectful opinion of this Tribunal, the Tribunal should not: ‘…parse and construe rules of procedure in a narrow and unreal way, looking for some flaw in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.’

The respondent submits that the alleged denial of fair procedures did not change the outcome of the complainant’s termination due to the seriousness of the facts surrounding his dismissal. The respondent further relies on the seminal case of Looney & Co. Ltd. v Looney UD843/1984, (taken from Mary Redmond, Dismissal Law in Ireland) where the EAT 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.”

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.  The facts are well set out above.

The company received a complaint about the complainant not being in his workplace when he was still rostered for work. It then emerged that this had happened on more than one occasion.

Following this there was an initial ‘progress meeting’ at which the matter was discussed with the complainant. This was then followed by a disciplinary hearing which resulted in the termination of his employment.

Strictly speaking, the purpose of a progress meeting was explained as being, as the name suggests, to assess the progress of the complainant’s apprenticeship; essentially his work and learning performance.

In this case, it appears to have been blended into the disciplinary process. While the two are not mutually exclusive, of course, they overlapped to an extent in this case that gives rise to concern about the process.

There are a number of such issues arising in respect of fairness in the conduct of the process.

The significance of these revolves around the fact that the complainant says in his defence that he was told by his MD and another co-worker that it was acceptable to state a finishing time on the time sheet that was later than that on which his shift actually concluded.  This, if true, would have represented substantial mitigation in his defence.

The question is whether that ‘defence’ was given due consideration by the respondent before it terminated his employment.  The person conducting the disciplinary hearing was one of those the complainant alleged had told him the practise in relation to the timesheets was acceptable.

While it is far from the only serious deficit in the process, I conclude that his explanation was not given due consideration.

The meeting notice sent to the complainant about the disciplinary hearing was also entirely inadequate. While it referred to the meeting as being a disciplinary hearing there was no statement of the ‘charges’ against the complainant, what they were based on, or of the likely consequences of an adverse finding against him (e.g., that his job might be at risk), nor was there any reference to his rights to representation.

The notice given (in terms of time) of the meeting was even worse. While the respondent set out the dates on which the notice was issued it neglected to state that the complainant received the invitation to the Disciplinary hearing on the Saturday of a public holiday weekend for the following Tuesday. He was not even given one full working day’s notice.

Also, the respondent’s instruction to him to bring company property to the meeting is highly suggestive that the outcome was a foregone conclusion and had been entirely prejudged.

This is borne out by the complainant’s account of the meeting which he said was very brief and at which he did not have the opportunity to state his case. As noted above, the meeting was conducted by the person who the complainant alleges told him that it was acceptable to put in a time later than when he finished, which hardly makes him an independent person.

The respondent defended its refusal to allow the complainant to be accompanied by a parent on the basis that it was not provided for in its procedures.

While this is technically correct it was being unnecessarily legalistic in circumstances where a young worker was being threatened not just with the loss of his job, but with the effective termination of his apprenticeship contract. It adds to the impression that facilitating the complainant’s right to a fair process was all a bit of a nuisance.

The actions of the employer were harsh in this respect. (There was an odd twist to this in that the respondent appeared to believe that the complainant’s intended representative, his mother, wanted to chair the disciplinary meeting!)

In any event, whatever about the involvement of a parent the respondent was entirely wrong in stating to the complainant that ‘Any third parties present for your scheduled meeting will not be provided access to the meeting”. The Code of Practice clearly provides a right of representation by a trade union official, or a co-worker and the respondent was wrong to state this.

The complainant (or any complainant) would have had extreme difficulty locating any representative given the impossibly short timeframe in which the disciplinary hearing was convened.

It is well established that before taking a complaint under the Industrial Relations Act a worker should have exhausted the internal workplace procedures. In this case the complainant submitted an internal appeal on March 2nd and referred the matter to the WRC three days later on March February 16th. The appeal went ahead and was not upheld.

The respondent made a number of legal submissions on the general principle of when a flaw in procedure will be sufficient to require the outcome to be set aside.

For example, inElia Erian Aziz v The Midland Health Board [1995] E.L.R. 48, the Circuit Court set out some guidance on the balance which needs to be struck and defined as the central consideration the principle of whether injustice results:

Where a defect in the procedure adopted or in the conduct of the proceedings is alleged, the applicant in order to succeed must establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done.

Accordingly, where there is no reasonable possibility that an injustice may have been done to the person under investigation as a result of the defect complained of, the decision is lawful and has the same effect as it would have had if no such defect had been found.”

How is that to be applied in the current case?

There are three possible breaches which need to be considered in determining the ‘reasonable possibility that an injustice may have been done’.

The first is the defective nature of the notice of the meeting in that it failed to give the complainant an indication of the charges against him, or time to prepare or the right to be represented.

The second is the indication of pre-judgment (and thoughtlessness) represented by asking the complainant to attend the hearing with the company property.

Finally, there is the failure to hear the complainant’s case in mitigation, viz that the impugned conduct had essentially been authorised, which is a very significant omission. In its evidence the respondent witness stated that he had been told this on only one exceptional occasion.

I see no reason to doubt the complainant’s submissions on this point that it happened more than once, (‘multiple occasions’ was his phrase).

These are not technical or procedural flaws. They go to the heart of the complainant’s right to a fair process and the respondent’s cavalier attitude to them places his case well outside any protection which the dicta in Aziz v MHB might otherwise afford him.

I find therefore that the termination falls well short of the requirements of a fair procedure and that the dismissal was unfair.

As for the premature referral to the WRC, I take into account that, in any event the appeal did proceed but was not upheld and therefore it diminishes the significance of the early referral. This is to say nothing of the conclusions of the appeal itself which require some comment.

The Appeal Officer from the external HR company concludes that while the company could have, as she put it ‘clarified the disciplinary process’ she proceeds to disregard this on the grounds that ‘it would not have changed the outcome’.

Ironically, and not as she intended it, nor indeed in any acceptable sense, she may have been right.

She further found it to be an acceptable basis for defining the purpose of the disciplinary hearing that it was ‘clearly stated that it was to discuss performance’ and that the responses to the complainant’s queries about the nature of the meeting were ‘appropriate’.

This is totally erroneous and quite misconceived.

In fact, they were not only not ‘appropriate’ they were entirely inadequate. This gave rise, not to a requirement for ‘clarification’ but it went to one of fundamental propriety in the conduct of a disciplinary hearing, the significance of which the Appeal officer appeared to be unaware, or willing to disregard. An indication that one’s performance is to be discussed comes nowhere close to meeting the requirement of notice for a disciplinary hearing.

A worker is entitled to proper and adequate notice of a disciplinary hearing, the specific charges they are facing and the material on which this is based, and the possible consequences of an adverse finding. They are entitled to have the hearing conducted in a proper fashion by an independent person. 

How the appeal officer could find it acceptable that a notification that ‘performance’ was to be discussed at a meeting which then metamorphosed into a finding of gross misconduct and termination must remain a mystery. The fact that none of these considerations weighed with her is quite alarming.

On these facts, there is every possibility that a properly conducted disciplinary process at which the complainant was properly represented, and his case advocated could have reached a different conclusion, and the Appeals Officer’s presumption in stating otherwise is not explained. She completely overlooked the pre-judgment element of the process.

There is abundant material here to meet the principle set out in Aziz above, which is.

that in order to succeed [an applicant] must establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done.

I have no hesitation in concluding that the cumulative breaches of fair procedure in this case represented a very serious injustice to the complainant and therefore I uphold his complaint and find that his employment was unfairly terminated.

Unfair dismissal