ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037917
Parties:
| Complainant | Respondent |
Parties | David Walsh | Mark Gallagher T/a Smart Financial |
Representatives | Stephen O’Sullivan B.L. instructed by Daragh M. Keane Solicitors | Peninsula Business Services |
Complaints.
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-00049323-001 | 24/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00049323-002 | 24/03/2022 |
Date of Adjudication Hearing: 14/09/2023
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
Smart Financial is a financial services company.The complainant, David Walsh was employed with the respondent from November 21st 2016 until December 17th, 2021. His employment was terminated in December 2021, and he says that he was unfairly dismissed. There are further complaints related to payment of wages etc. |
Summary of Respondent’s Case:
CA-00049323-001 - s.8 Unfair Dismissal Act, 1977: On August 23rd, 2021 the complainant left work as he was unwell and on August 24th, 2021, he did not attend work. On August 25th 2021 he submitted an unfit to work certificate due to elevated stress. This certificate did not indicate that the stress was work related.
On that date the respondent contacted the complainant by email to organise the collection of his laptop for repair purposes. There was an issue with the laptop screen.
Priortothisthecomplainant hadbeenrequestedtotrainnewstaffanditwasduringtheperiodofsickness that this training was to occur. Later,onAugust 25th 2021therespondent contactedthecomplainant byWhatsAppto arrange the time and place to collect the laptop.
The complainant at this point had already been tested for Covid 19, as per his own messages to the respondent after the meeting.
At approximately 7.30pm the complainant and respondent met to exchange the laptop. The complainant refused to hand it over. The respondent then changed the PIN on the laptop, concerned that the complainant would be working on it during sick leave related to stress and his refusal to hand over the laptop after arranging to do so.
On August 26th, 2021, the complainant informed the respondent that he had tested positive for Covid and that he had taken the Covid test at 1.05pm on August 25th.
The complainant was off on a certified week from August 25th, 2021, for stress related matters but now with the addition of a positive test he had to isolate for ten days starting on August 26th. This meant that he could not return to the workplace until September 4th 2021.
On August 30th, the complainant contacted the respondent saying he wanted to resume working, The respondent position was clearly stated that until the isolation period had ended the complainant was not to attend the office. The complainant attended the office regardless of this and he was placed on paid suspension, and he was ultimately dismissed on December 17th, 2021. This dismissal was appealed, and the appeal was not successful.
There was a robust investigation, and an appeal to an external third party.
Evidence of witness Mark Gallagher, respondent MD, was given on oath.
The witness said that when the complainant left work on August 23rd, he gave no indication of the nature of his illness. Prior to this the complainant had been advised of a new recruit who was to support him, but he replied saying he did not need support. There was correspondence between them and in due course when he got the medical certification indicating that the complainant was suffering from stress this was a matter of concern.
In his line of business, the risk of a person making an error while not fully fit is a serious one.
The witness indicated that he would need certification from his doctor that the complainant was fit to return to work. He had never in fact worked remotely in general (apart from been two days) and everybody in the business with the exception of some self-employed consultants attend the office.
Regarding the issue with the laptop the witness saw an opportunity to have the screen repaired during the complainant’s illness as he took it that he would not be working in that period.
He arranged to go and see him. At that point the only condition he was aware of in relation of the complainant was stress. Had he known of the Covid risk he would not have met him. The witness said that he had underlying conditions which placed him in a high-risk category if he contracted the virus.
When he arrived, he got out of his car and went to the complainant’s car. The complainant was recording him on the phone but did not have the laptop. He said he had no intention of giving it to him. Later that evening, the witness had a laptop disabled so that the complainant could not access work related material.
The following day, the witness become aware of the positive Covid result. The complainant confirmed the positive test to him at 17.47. The meeting with him the previous evening had taken place without masks and the witness was very concerned for himself and for his staff.
The next day he got confirmation of the complainant’s fitness to return to work but that it would be only on a remote basis. The witness was not prepared to accept this until the complainant was assessed by a medical practitioner.
The witness believed that the complainant was required to undertake a period of self-isolation for ten days which he estimated to run from either the 26th or the 25th until September 3rd. On August 30th, and 31st his position was that self-isolation should continue and that there should be a medical review in relation to the complainant’s stress.
On September 2nd he got a text from the complainant saying that he was counting back ten days to the 24th and therefore he was free to return. The witness sent him a text at 9:19 instructing him not to go into the office and repeated this on three occasions after 10 o’clock. There are six texts in total, all instructing the complainant not to attend at the office.
The witness said that the complainant and he had been his best friends for years and had he not turned up as he did, he would have returned to work once he was certified as being medically fit to do so.
However, it was clear that the complainant’s job was required to be office-based, and he operated on the basis that because of the risk of transmission of the virus he calculated that September 5th was the earliest the complainant could return to work.
On September 2nd, the witness was not in the office when the complainant arrived, and he just sat at reception. The complainant was suspended, and this was followed up by a formal letter of suspension.
He then proceeded to engage an external HR company to manage the issue and he was told to take a step back and he did so.
Under cross-examination the witness was asked who made the decision to dismiss and he replied that it was the HR company, and Paula Kelly He was also asked to confirm that Miss Kelly was his romantic partner. He did so.
It was put to him that at the investigation stage the HR company only concluded that there was a further case to answer in respect of four of the allegations.
He was asked for the complainant’s wage was and answered that it was on average €67,000 per year excluding pension contributions. The witness was also asked whether he was keen to get rid of the complaint to which he said he had not been. It was also put to the witness that it was he who insisted on the meeting (regarding the laptop).
In relation to the four allegations the witness was asked whether it was reasonable to dismiss for reason one in the complaints which related only to one day’s absence, and he accepted that it was a bit heavy-handed.
In respect of the absence on August 24th it was put to him that the reports largely exonerated the complainant but said that he had a case to answer.
Again, it was put to the witness that there was no evidence that the complainant was not working at home during those days of absence. To all of these questions the witness repeated that had he had no involvement in the process of the dismissal of the complainant.
He said he was very clear about the fact that the complainant should not attend on September 2nd. It was put to him that the issue in relation to allegation three is when the ten days isolation should begin to run.
Finally in relation to the non-return of the laptop it was put to the witness that the complainant had personal material on the laptop to which the respondent replied that he should not have personal material on it.
This concluded the evidence of Mr. Gallagher on this complaint.
In Section 6(1) of the Unfair Dismissal Act 1977 it states as follows.
“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.”
The Act goes on to specify at Section 6 (4) (b)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.”
The respondent submits that the complainant’s conduct was the only reason for his dismissal. He had the benefit of fair procedures throughout the process and that it acted reasonably in dismissing the employee in this circumstance.
The respondent made submissions on the case law including Looney & Co. Ltd. v Looney UD843/1984, Barry v Precision Software Ltd. (UD 624/2005) [2006] JIEC1801, Israr Ahmed v Bidvest Noonan Services Group Limited - ADJ00030617, Shortt v Royal Liver Assurance Ltd (2008) IEHC 332, Murphy v College Freight Ltd. (UD867/2007, Fanning v. University College Cork [2002] IEHC 85, McCarthy -v- O'Sullivan Bros DIY (UD800/1989) / [1991] ELR 44, Billingsley -v- Applus Car Testing Ltd. (UD17/2013) and Dariusz Swider v Carey Glass ADJ-00028790,
CA-00049323-002- s.6 Payment of Wages Act, 1991
The complainant has made a claim for alleged unpaid commissions but has not been able to specify the dates that these were due, and the respondent says he has received all payment due, indeed he was overpaid. The complainant is also claiming notice pay. As he was dismissed for gross misconduct no notice pay or payment in lieu of notice is due and owing to the complainant .
The respondent relies on section 8 of the 1973 Actwhich states as follows: ‘Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.’
The complainant has made a claim for holiday pay. He has been paid all holiday pay due.
Continuing evidence of witness Mark Gallagher, respondent MD on Payment of Wages complaint.
He challenged the figures given for commission statements in the in the complainant submission.
He commented that in relation to ‘trail payments’ it was a Central Bank requirement that when a person was not actively managing an account it be passed to another broker. He also confirmed that sick pay was not paid to any employees in the business although a small contribution had been made to the complainant on legal advice.
Witness said that no notice was paid to the complainant because his termination had been on the basis of gross misconduct. Regarding annual leave the witness gave a list of dates on which the complainant had been absent, twelve days in total. He said that he was not due any additional annual leave.
In cross-examination the witness was asked to confirm his statement that the complainant was not entitled to any commission. He said this was correct as he was not servicing clients. The witness was also asked whether the complainant had been told he would not be entitled to commission and he said that he had not been.
The witness was asked whether he could produce any record of annual leave entitlements, but he could not.
There was further discussion on the detail on the failure of the respondent to provide this to the hearing. He said that some information had been given to his advocate and it had not been provided to the hearing. He was also asked why the complainant was not paid for two days which he was fit for work. The witness disputed that he was due payment for any days.
That concluded his evidence.
In summing up, the respondent said that all commission was fully paid and there is no evidence has been produced to justify any additional payments.
The respondent also noted that the complaint fell outside the cognisable period which ran from September 25th, 2021, only. Also, the complainant had twelve days leave in the qualifying period and repeated that no notice payment was due because of the finding of gross misconduct
The complainant has not provided sufficient information in respect of the mitigation of his losses.
It is incumbent upon the complainant to seek to mitigate his losses as per Section 7(2)(c) of the Act. “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”
The Labour Court found in Synergy Security Solutions -v- Dusa (UDD1911), in addition to the employee having significantly contributed to his dismissal, the Labour Court awarded a successful complainant no compensation on the basis that he has failed to mitigate his loss, saying:
“The Court finds the evidence tendered by the Complainant to the effect that he has been unable to find alternative work in the period since 11 April 2017 to date to be lacking in credibility and cogency. The Complainant is well educated and experienced. He holds a Private Security Authority licence and has a bachelor’s degree in international business. He has good language and communications skills. The Court is aware from its own knowledge that there are many current vacancies in the jobs market, in the security industry and elsewhere, that offer remuneration in or around the level that the Complainant was in receipt of while he was in the Respondent’s employment. In short, the Court is not satisfied that the Complainant has made reasonable efforts to mitigate his loss. For that reason, the Court marks the compensation payable to the Complainant at nil.” The respondent refers to the decision of Coad v Eurobase (UD1138/2013)where the Tribunal noted, “In calculating the level of compensation, the Tribunal took into consideration the efforts of the complainant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a complainant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a complainant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.” Notwithstanding the forgoing, the respondent also refers to the decision of Mlynarski -v- Pianos Plus (UD 1294/2008)where the complainant was awarded no compensation. The Tribunal held that, “…the dismissal of the complainant was procedurally unfair and therefore the dismissal was an unfair dismissal… The Tribunal determines that the complainant was unfairly dismissed … and finds that the complainant ’s contribution to his own dismissal is such that the appropriate remedy is an award of compensation in a nil sum.” In the WRC decision of A Beauty Therapist v Beauty Clinic ADJ-00011306the Adjudicator noted that the dismissal while unfair, the Complainant “contributed 100% to the dismissal and no award of compensation is made.” In the recent case ofBridget Clarke v Paul Connolly (ADJ-00034380) this was further upheld. In this case the complainant had overpaid herself and was unable to provide a plausible reason for doing so. In this case the complainant’s dismissal was deemed to be substantively fair but procedurally flawed and therefore she was unfairly dismissed. In dealing with the calculation of compensation the Adjudicating Officer found ‘ the Act requires, in determining the amount of compensation payable, that I consider the extent to which the conduct of the Complainant contributed to her dismissal. In this regard, I find that the conduct of the Complainant contributed to the extent of 100% to her dismissal, that she acknowledged overpaying herself, albeit allegedly in error, and that no evidence was presented to suggest that these overpayments were refunded to the respondent either at the time of her dismissal or subsequently.’ Should it be found in the present case that the complainant was unfairly dismissed due to procedural flaws, the respondent would submit that the complainant contributed 100% to his dismissal through his actions and the Commission should accordingly award no compensation. In light of all of the above, the respondent respectfully invites the Adjudication Officer to find that none of the claims are well founded. |
Summary of Complainant’s Case:
Submission on Payment of Wages Act complaints
The complainant was a broker employed by the respondent since 21/11/16. He was one of the most senior staff employed by the employer and was successful in achieving sales during his period of employment. His income from the employment with Smart Financial was the only family revenue. His wife was a full-time homemaker in the period 15/11/2016 to 17/12/2021.
Details were submitted of the complainant ‘s earnings. He was paid a salary of €36,000 in 2019 and €48,000 in 2020 and 2021 plus commission on sales. For 2019 he was paid a total €84,755.60, comprising €36,000 for salary + €48,644.12 for commission (of which pension contributions of €14,800 was paid to the complainant ’s pension and therefore not reflected in the EDS (authorised) + €2,422.60 (missed commission paid in December).
In 2020, he was paid a total €77,186.59, comprising salary €48,000 + commission of €29,186.59 (€3,611.06 was a contribution to the complainant ’s pension taken from commission and therefore not reflected in the EDS (authorised). In 2021 he was paid a total €66,612.
This figure is understated as the complainant is not satisfied he was paid all commission for the period August 2021-December 2021. The employer did not provide accurate commission statements for that period. This works out as average €76,185 or €6,349 per month or €1,465 per week.
The complainant was due 20% of gross commission. This was pursuant to a verbal agreement reached with MG before 2019. Showing this in practice, the complainant received a commission statement for January 2021 showing total premium take of €10,471.86. He was paid 20% commission totaling 2,094.37
During 2020, the complainant discovered that the employer was not paying him all commission earned. In 2021, he identified five commissions that ought to have been paid to him in the previous six months. The complainant emailed MG with the names and policy numbers of the sales but got a slow and unsatisfactory response.
Theemployerdidnotprovidepropercalculationsofcommissionduringtheemployment. This was particularly true for the period after suspension on 2/9/21 to termination on 17/12/21. It is for the employer to prove that commission was calculated and paid with precision.
The employer should clarify the process it followed to ascertain commissions owed to the complainant for the periods claimed. MG received the commission details from product providers and identified what commissions should be paid to the complainant. MG then compiled a commission statement particular to the complainant. It was not a transparent process, so the complainant had no way of knowing if he was paid the full amount due.
In MGs first affidavit to the High Court, MG refuted the complainant’s averment that he was on target to earn €40,000 commission for 2021 but estimated it at €25,000,
While the complainant was suspended from 2/9/21 to dismissal 17/12/21, he did not have the opportunity to earn fresh commission as opposed to trail commission, for the period during suspension.
The complainant requested relevant policies in an email 7/9/21, after suspension on 2/9/21 but MG did respond.
Witness evidence on PWA complaints
The complainant, David Walsh give evidence on oath and confirmed the details set out above in relation to his commission earnings for the year 2019-2020.
He was given a commission statement every month but says that there had been previous incidents of non-payment. For example, the commission statement from August 2021 contained no supporting detail as to how the calculations had been made. After his suspension in September 2022, he was paid a number of round sums but was not paid ‘Trail commissions’.
He said that he was cut off from the company systems on August 25th, 2022 and could not use his laptop after that to verify commission due. The last commission statement he received was for August 2021. He also did not receive any notice payment on the termination of employment.
Finally in respect of annual leave he says he did not get any annual leave in 2021.
(At this point the adjudicator asked the respondent whether there would be any evidence of the complainant sales commission due, and commission paid. The respondent stated that there would not be.)
The complainant said he expected higher earnings on the 2021 post Covid and he identified some anomalies.
He referred to a written submission received from the respondent’s solicitors on September 29th, 2021, which identified payments of 2334.8 in respect of basic pay €350 in relation to commission. He disputed figure of €726 which he says should have been €968.
This concluded the evidence of the witness.
In summary, the complainant says that the estimate of commission due which was submitted in evidence is properly payable to the complainant. He is entitled to payment of notice specifically as there is no provision in the contract of employment to permit non-payment in the circumstances claimed by the respondent.
Also, the respondent has produced no record of annual leave taken.
Finally, the deduction in respect of the period commencing end of August 2022 is excessive; the complainant was only unavailable for work for two days.
Submission on Unfair Dismissals Act complaint
On 23/8/21 the complainant went home from work early because he felt unwell. The complainant worked from home on 24/8/21. The following day he was certified by his GP as unfit to work due to stress, but the GP said he could work from home.
On 25/8/21 the respondent said that the complainant would not be paid for this period, requested a GP certificate as to when he would be fit to return and asked him to return his laptop on the false pretence that the screen needed to be fixed.
On 26/8/21, the complainant got a positive Covid 19 test result. He informed MG on that day of this.
On 27/8/21, the complainant sent a GP certificate to say he was fit to work remotely.
On 2/9/21, the complainant informed MG that he was fit to return to work and returned to work. MG reported the complainant to Crumlin Garda Station who contacted the complainant. The complainant explained his position, sent an email to the Garda who said he was satisfied that the complainant was Covid compliant and would contact the employer to inform him of this. One hour later, MG send an email suspending the complainant without pay. The letter did not detail the precise allegations.
The complainant was normally paid wages at the beginning of each month for the prior month. As at 17/8/21 (the date of the High Court application), the last date he had been paid was 5/8/21. He was not paid his wages for August 2021 until 29/9/21, after the High Court application.
On 22/9/21, and after the complainant had secured an interim order from the High Court to continue payment of wages, the employer said he would be paid during suspension. After this date, MG expanded the allegations which are contained in the letter from Graphite HR 22/9/21.
On 17/9/21 the complainant got High Court interim orders to be paid pending the suspension. The High Court application was ultimately settled but the settlement excluded, and did not compensate the complainant for, any claims for inter alia Unfair Dismissal, Minimum Notice, or any claim for unpaid or underpayment of wages or any claims already before the WRC.
On 22/9/21 the complainant first received contact from Graphite HR that they were conducting an investigation into the allegations. It seems clear from the Graphite Report and from para. 26 of MG’s second affidavit in the High Court proceedings that he did not make himself available for interview with Graphite until 28/10/21. At that point the complainant had been suspended for nearly two months.
The complainant was directed not to talk with other witnesses during the course of the investigation. This put him at a disadvantage compared to MG, who was free to talk to other employees to corroborate his version of events, if necessary.
On 26/11/21 Graphite HR issued an Investigation Report and found that the complainant had a case to answer on five allegations. The Report was inconclusive and ambiguous and was not furnished to the complainant until 4/12/21.
On 17/12/21 Paula Kelly issued the disciplinary decision to dismiss on the basis of four of the five allegations. Ms. Kelly was not sufficiently independent to conduct the disciplinary hearing. She was not an employee of Smart Financial and was/is the romantic partner of MG.
It was not clear to the complainant who made the decision to dismiss. The letter of dismissal was not signed. It referred in various places to "We" instead of "I", suggesting that MG made the decision or had a significant input in the decision.
The complainant appealed internally. On 7/2/22, Collier Broderick determined the appeal against the complainant. We now address each of the findings of misconduct as upheld in the letter of dismissal and the Collier Broderick Report.
Allegation 1 - That the complainant took unauthorised leave from the office on 21/4/21
The Graphite Report largely exonerated the complainant on this allegations. It states: -
“In relation to this allegation, (MG) submits that (DW) was not in the office on the given days. The evidence submitted by (MG) to support this claim shows that (DW) does not always put workload tasks into the Gmail calendar. As shown on the calendar screenshots there were days without any diary appointments that he was confirmed to have worked. (MG) showed an email whereby (DW) notified a colleague he was not going to be present in the workplace on the 21st of April 2021 due to childminding. There has been no verifiable evidence submitted to the investigation to suggest (DW) was absent from work on the other given dates. (MG) by his own admission did not find (DW)’s non-attendance at the office “a big deal”. However, (DW) was shown to have not attended the workplace on April 21st, 2021, without informing the Management. Therefore, the investigation finds that (DW) does have a further case to answer for unauthorised absence on April 21st, 2021.”
The complainant worked remotely on 21/4/21. Emails were received and sent on the day which show that he was working. It was not uncommon for him to work remotely. The complainant does not now have access to the emails to corroborate this.
MG had acquiesced to this practise prior to 21/4/21. There was no direction from MG prior to 21/4/21 that he must not work remotely or that he must attend the office during working hours. The Employer had no procedure in place at the time for when employees could or could not work remotely.
The Government Guidelines at the time was that employees should work from home, where possible. Most of the complainant ’s work was via email and phone rather than face to face meetings with clients. MG admitted to the Investigator that his non-attendance at the office not “a big deal”.
The letter of dismissal stated:-
“I am of the view that this allegation should be upheld as it was not approved that you could work from home on this date. As an employee, it is totally unacceptable to assume that you could work from home on a particular day without seeking approval from management. As a result, considering the lack of approval in this respect, I have made the decision that allegation one should be upheld”
This is in contradiction to the Investigation Report which found that Mark Gallagher said it was not a big deal that the complainant worked from home.
Allegation 2 - That the complainant failed to notify his manager on 24/8/21 that the complainant was unable to attend work due to illness.
The investigation largely exonerates the complainant in this respect. It states:-
“(DW) left the workplace due to illness on the 23rd of August [2021] and continued to work the remainder of the day and the following day from home. (MG) stated that due to health and safety concerns employees would be expected to notify their manager if unwell for any reason. In line with the sickness policy provided (DW) was required to notify the company of his illness. However, (DW) was continuing to work from home as he stated was never an issue before. There has been no evidence submitted to the investigation to show (DW) was not working from home on the date, 24th of August [2021]. (DW) had not been made aware of issues concerning his presence in the workplace prior to the launch of this investigation. As (MG) had stated in relation to allegation 1 – he was aware of dates relating back to April where (DW) had not been present in the office and this had not been brought to (DW’s) attention previously. (MG) told the investigation that there was an updated sickness policy, however there is no evidence to suggest this was ever issued to (DW) as the copy provided to the investigation differs from that of what (MG) told the investigation governed the company in terms of sick policy. The handbook which was provided to the investigation does not contain a sickness policy. Further to this, as (DW) stated; he was working from home he was not incapacitated to work. However, (DW) did not inform (MG) he was unwell on the 23rd of August [2021] or that he was unable to attend the workplace on the 24th of August 2021. Therefore, the investigation finds that (DW) does have a further case to answer for.”
The complainant was unwell on 23/8/21 and went home early. He worked remotely on 24/8/21 and he was not unwell on 24/8/21. He furnished a sick certificate for 25/8/21 not for 24/8/21. The complainant sent work emails on 24/8/21 but does not now have access to those emails to corroborate this.
The updated sickness policy relied on by MG was not furnished to the complainant on or before 24/8/21. The Government Guidelines at the time was that employees should work from home unless attendance at work was essential.
The letter of dismissal stated
“In a signed copy of your contract, it states that ‘you must contact the company by 9:30a.m. on the first day of such absence’. As your decision to work from home was not authorised, you were unwell, and you did not contact the company, I am of the view that allegation two is upheld.”
This misrepresents the relevant paragraph which actually states “Sick Leave If for any reason, other than exceptional circumstances, you are absent from the Company’s employment or unable to carry out the full duties of your employment, ‘you must contact the company by 9:30a.m. on the first day of such absence"
The complainant was not sick on 24/5/21. He worked remotely; therefore, this paragraph is not relevant.
Allegation 3 – That the complainant attended the workplace while unwell with COVID-19 on 2/9/21.
The Graphite Report is flawed where it states:-
The allegation pertains specifically to (DW’s) attendance at the workplace while unwell with COVID. The investigation finds, given the current guidelines as outlined by the HSE that (DW) did attend the workplace while in a period of self-isolation as the ten days from first displaying symptoms was the 24th August to the 02nd September inclusive. Therefore, (DW) should not have attempted to attend the workplace on the 02nd of September.
The first symptoms the complainant experienced were on 23/8/21, not on 24/8/21. The correct date of 23/8/21 is reflected in the Graphite Report on Page 7 where it states.
“During (DW’s) interview, he informed the investigation on the 23rd of August that he had become unwell in the afternoon and left the workplace.”
On the 25/8/21 the complainant ’s GP advised the complainant to get a Covid test was because of the symptoms he had described having on 23/8/21. The complainant adhered to official HSE isolation guidelines applicable at the time. The complainant had self-isolated for 10 days after symptoms began and had 2 negative PCR Covid tests before he returned to work on 2/9/21.
The letter of dismissal states
“We do not accept that you started to have symptoms on Monday 23rd August [2021], when you had already admitted that you did not, you wanted to work from home the following day and Wednesday 25th August 2021 you never mentioned Covid-19 to Mark when he called over.”
This is flawed and does not take account of the totality of the findings in the Graphite Report. There was not factual basis for the finding in italics.
Allegation 4 – That the complainant did not return a work laptop despite a request from the organisation on 25/8/21/
The Graphite Report substantially exonerated the complainant in this respect:-
“In considering this allegation, it needs to be examined as was it a reasonable management request to return a piece of company property on the basis that (DW) needed the screen fixed and was certified unwell for a period of one week.
There has been no viable reason put forward to the investigation that would show why the organisation would require the laptop back under such urgent circumstances when (DW) notified (MG) of his absence and was able to prevent (DW) for working. Furthermore, the laptop was not removed from him when he was unwell in the past. Coupled with the fact other employees were actively provided work equipment while unwell seems to show a lack of continuity in the protocols around working while absence. (MG) was subsequently able to disable (DW’s) access to the laptop. The reason (MG) cited for this; ‘I hope my actions got him back a little bit quicker’, seemingly in contrast to the original reasoning (MG) cited for requesting the laptop back from (DW).
MG references the ‘Use of Computer Equipment” policy. The complainant did not receive this policy on or before the material dates.
On 26/8/21 MG remotely changed the PIN to the laptop. The reason MG cited for this to Graphite was “I hope my actions got him back a little bit quicker”. Once the PIN was changed by MG, the complainant was neither able to access the laptop nor Employer Systems. For these reasons, the complainant has not been able to appendix each and every email exchanged between him and MG.
The complainant did not use the laptop for work purposes after suspension on 2/9/21. The laptop contained personal information and correspondence between the complainant and his solicitors.
On 2/9/21 the complainant sent an email saying he would return the laptop if he could remove all personal information from it first. The complainant was not happy to return the laptop without being allowed remove his personal data from it.
It would be contrary to his rights as a data subject under the Data Protection Act 2018, GDPR and his right to maintain privacy in relation to legal advice he had sought or received, to be forced to hand over his laptop without having been afforded the opportunity to remove his personal data.
The Safeguards and Standards Section contained in the Staff Manual recognises that the Employer does not have unconditional access to all data on the devices.
On 26/11/21, the complainant proposed the creation of a Protocol for the to return the laptop . The Employer has never responded to that email or suggest a moderated Protocol. On or before 22/2/22 the employer suggested the laptop be handed to Sean Daly. The complainant objected to that because Sean Daly was a friend of MG and asked for someone independent and for there to be a protocol.
See the correspondence and WhatsApp messages exchanged in relation to this at DW11
The complainant continued his evidence on oath
The witness confirmed that he had not previously been given any workplace policy documents including those relating to computer use, sickness policy et cetera. He said that on August 23rd he went to the office but felt unwell with diarrhoea and went home. He told his co-workers that he was leaving.
The following day he decided to work from home as it had never been brought to his attention that he could not do so, nor had there been any objection to his retaining and using the laptop. He had previously objected to being asked being asked to train someone and he was asked to do it again he became stressed.
When he visited his doctor on August 25 the doctor was not sure he could be suffering from the COVID-19 virus but suggested a test just in case and the witness undertook on the following day. Later that day he got a text from the respondent saying that he wanted the laptop. When he went to meet the respondent that evening, he completely forgotten about having had the cover test earlier in the day.
They did maintain two metre separation in any event.
In due course he noticed that he could not access the laptop. The following day he got confirmation of the test result and he communicated this to colleagues. On the 27th he returned to the doctor and explained the situation and as he felt a responsibility to clients he was certified as fit to work from home. He reviewed various guidance literature about COVID-19 and considered that he had fulfilled the ten-day self-isolation by that day.
He contacted them to say that he intended to return, and no one objected, and he texted negative test result test results. In the meantime, the respondent had reported him to the Garda Siochána one of whose members called him and he satisfied them that there was no cause for concern.
He was given no reasons and was not paid until September 20 on foot of a High Court injunction. All of this information was given to the investigator, and it is important to note that the mother being investigated in relation to September 2 was not that he attended against the instruction of a supplier but that that he continued to be positive. Twitter said he was especially concerned that despite drawing to the attention of the investigator his version of the timeline on the 10 days this was ignored.
In summary he says in relation to the four allegations, in relation to the absence on April 21st that he had worked from home before and that this had never been an issue, and this also applied to his absence on August 24th.
In relation to his attendance on September 2nd he was clearly over Covid at that stage, and finally, in relation to the laptop, he did eventually give it back.
The witness gave evidence as to his losses attributable to the termination.
He had been trying to get the necessary approval from the Central Bank to set up as an independent broker, but this had been delayed, partly due to a lack of cooperation from the respondent who had also significantly delayed the hearing. He had secured employment as a broker since June 2023 but on a commission basis only.
In cross examination it was put to him that there was little actual evidence of specific job applications or effort to mitigate his losses, and he accepted that there had only been one application for a job. In response to further questions, he confirmed that he did not consider reverting to his previous career in recruitment and indicated that family responsibilities played a part in his failure to get work.
In response to a question from the respondent representative the complainant that he had not contacted the respondent on August 23rd or 24th. it was also put to him that he had not been asked to train the new recruit, simply to ‘shadow’ him.
The dismissal was unfair because i. It was in retaliation to WRC claims made by the complainant on 29/9/20, 6/10/20, 13/1/21 and 24/8/21 ii. The dismissal was in breach of fair procedures for the reasons set out herein. iii. The complainant did not commit misconduct or gross misconduct. iv. If the complainant did commit any form of misconduct, dismissal was wholly disproportionate. Submissions were made on the efforts of the complainant to get alternative employment since 17/12/21 and a calculation of loss of earnings since 17/12/21.
The complainant claims commission not paid in the period to 25/3/21 to termination on 17/12/21. He seeks an extension of time to go back 12 months prior to lodging the claim form because the complainant had made a complaints re ongoing failure to pay commission on 6/10/20 and 13/1/21 which had not been dealt with at that point.
The complainant received a commission statement for August 2021. It omitted various detail such as date of policy inception, client first name, policy number, product provider and type of product.
The complainant is unable to be more accurate in this list because he no longer has access to the relevant files and the employer was not transparent in paying commissions. In defence of this claim, the employer should provide a detail account of commissions due, and commissions paid in this period.
The complainant was dismissed without notice on 17/12/21. The terms of employment provided for 1 months’ notice and did not allow for less notice unless such was mutually agreed. The contract of employment states “Notice In the event that either the Company or you may wish to terminate the contract, before its expiry date, one month notice must be given by both parties. Nothing in this agreement shall prevent the giving of a lesser period of notice by either party where it is mutually agreed.”
The complainant claims all wages due from 25/9/21 until termination 17/12/21. He did not receive all pay slips on time for this period. It was hard to correlate what was payment of wages and what was payment for commission.
The complainant accrued holidays during this period. The employer should put in a calculation of annual leave due on termination and show evidence it was paid.
Following his suspension on 2/9/21 he received the following payments:- i. On 29/9/21, €2,334.80. ii. On 24/9/21, €350.07 iii. On 7/10/21, €3,833.73
It was not made clear what amounts were for commission. It would seem the complainant was only paid wages (excluding commission) up to 30/9/21 even though he was supposed to be on paid suspension until he was dismissed on 17/12/21. |
Findings and Conclusions:
CA-00049323-001 Unfair Dismissal Act, 1977:
There are a number of phases in the narrative of events. By far the most crucial is that between August 23rd and September 2nd, 2022, and it is worth setting out the detail of what happened in that period.
Phase 1 August 23rd to September 2nd, 2022
The complainant says that he felt unwell on August 23rd and had to go home. (In his oral evidence he said that he was suffering with diarrhoea). The following day he says that he worked from home. In due course his decision to do so became grounds for a disciplinary charge.
The day after that, August 25th he submitted a medical certificate which attributed his condition to stress. He was told by the respondent that he would not be paid and was asked to return his laptop. On that same day, at 1.05 pm, and at the suggestion of his doctor the previous day he underwent a test for Covid 19.
Also, later that day, at the request of the respondent’s MD, Mr. Mark Gallagher, and in order to retrieve the laptop, they met in a public place. The complainant did not hand over the laptop, and neither did he tell the respondent MD of the Covid test earlier that day. Again, in his direct evidence he said it slipped his mind, or words to that effect.
The respondent then remotely disabled access to the laptop.
The following day, August 26th the complainant received confirmation that he had the Covid virus and so advised the respondent (and others).
Then, one day later, on August 27th, the complainant returned to his GP, and from that a fresh medical position emerged to the effect that the complainant was no longer unfit in general for work (as had been certified two days earlier for the period of one week) but was fit to work from home.
He rather vaguely described this second consultation as one at which he ‘explained the position’ to the doctor, who mysteriously amended his diagnosis of two days earlier.
On August 30th, the complainant contacted the respondent saying he wanted to return to work, The respondent’s position was that until the isolation period had ended (calculating it as having started on August 26th) the complainant was not to attend the office. The respondent gave evidence of some six text messages to that effect.
The complainant attended the office in defiance of this instruction on September 2nd.
There was a good deal of discussion at the hearing about how long the complainant had the virus before he took the test, and while this is of some relevance in due course in relation to the complainant’s criticism of the investigation, the fact remains that he defied a clear instruction not to return to work in circumstances where it was quite reasonable for the employer to issue such an instruction.
The complainant was suspended and the next phase relevant to this complaint began on September 22nd with the investigation. There are bizarre elements to this sequence of events. At this point it is relevant to note that personal relationships between the parties which had formerly been very close (they had been ‘best friends’, according to the respondent in his evidence) had deteriorated, to the point where at the first, abortive WRC hearing of the case the respondent said he would not sit in the same room as the complainant. It is not possible to exclude this bitterness as a factor in the relationship between the parties and how it impacted on how the narrative developed. In turn the complainant attributed the stress diagnosis directly to the actions of the respondent. It may be a coincidence that the decision to go home on August 23rd followed a request to the complainant to undertake mentoring (or ‘shadowing’) of a new staff member, a task he said in his evidence that was not proper to him. It seems unlikely that it was a coincidence. While the complainant attributes his condition on August 23rd to diarrhoea, two days later this had metamorphosed into stress, and just as inexplicably two days later even that stress condition had evaporated to the extent that he was fit (apart from having Covid) to return to work, but not at the office. There is an element of implausibility about all of the complainant’s evidence, and none greater than his blithe explanation that he overlooked telling the respondent of having had the Covid 19 test earlier on the day they met, because he ‘had forgotten’ about it, and in circumstances where they may have breached the proximity limits recommended for good public health practise when they did meet. In the event, this was very badly received by the respondent and hardly surprisingly. He said in his evidence that had he suspected there was any risk of Covid he would not have met the complainant, especially as he was a person with an underlying condition for whom the virus represented an enhanced risk. Ultimately, the key issue here is that the complainant took it upon himself to return from work without the medical certification required by the respondent based on his different calculation of the starting point for the isolation period. The complainant may have been correct in this (it seems unlikely that he contracted the virus only on the day of the test), but his actions in physically returning to work in defiance of his employer’s instructions and very understandable concerns was wrong. The respondent was entitled to the benefit of any doubt in the absence of clear medical certification. The respondent’s evidence was that the complainant would have returned to work in the normal way once he was certified fit to do so. This led to the complainant’s suspension and the second phase of the process. But up to this point the complainant was significantly the author of his own misfortune due to his erratic conduct and failure to respect the instructions of his employer. Much was made of the fact that the relevant charge against the complainant (allegation 3) did not relate specifically to failure to carry out an instruction. This is true, but that is what happened. In general terms the issue is the reasonableness of the employer’s actions, and as will be seen, the fairness of the process. Phase 2; The investigation An external consultant was appointed to undertake the investigation on September 22nd, and this concluded its work on November 26th, with the findings being sent to the complainant on December 4th.
The investigation upheld four complaints related to 1) Unauthorised leave from the office on April 21st, 2021. 2) Failure to notify his manager on August 24th, 2021, that he was unable to attend work due to illness, 3) Attending the workplace went on well with COVID-19, 4) Refusal to return to work laptop despite a request from the organisation and a breach of suspension by contacting clients during this period of suspension.
Or at least found, as it was rather oddly and imprecisely framed, that the complainant had a ‘further case to answer’. There was no attempt to distinguish between the gravity of the allegations or indicate what any ‘further case’ might be.
Three of the complaints are plainly petty matters; specifically one wonders why the respondent waited five months to raise the April absence. The others all arise in the context of the events of the week of August 23rd and following.
Also, in the course of his evidence on the complaint about leave entitlement, the respondent relied on April 21st, the date on which the complainant was found to have been absent and which justified the upholding of Allegation 1, as a day when he was on annual leave. This is quite significant.
Nonetheless, all of these were subsequently included at the disciplinary stage without discrimination in a charge of ‘gross misconduct’ and ultimately a finding was made that ‘your actions amount to gross misconduct’ and he was summarily dismissed.
While she does not say, it seems reasonable to infer that the decision maker was referring to all four charges.
The case law relating to when an Adjudicator will intrude into the decisions of a workplace decision makers is well known. In general, a WRC Adjudicator will only intervene most commonly where there has been a serious breach of fair procedure, but also where the conclusions drawn were perverse and unsupported by the evidence, or where a sanction lay outside the range of reasonable responses. In Allied Irish Banks v. Purcell [2012] 23 ELR 189, Linnane J. commented (at p. 4): “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 Therefore, there are exceptions, and some are to be found here in the first two allegations in particular.
Specifically, to describe as (or even imply that) a five-month-old incident of taking an unauthorised day off might be regarded as gross misconduct is preposterous.
Likewise, it is unlikely that, stripped of its context, the bitterness between the parties, and what happened next, the absence on August 24th which followed the day he went home sick would make it on a list of gross misconduct offences compiled by any person connected to workplace, or to any reality.
Both of these charges raise suspicions about the motives of those formulating the charges and whether it was considered helpful in ‘bulking up’ the case against the complainant, and thereby suggesting bias.
Similarly, there is an element of padding about the laptop incident. The investigator manages to reduce this issue to whether it was a reasonable management request to return a piece of company property but continues that.
‘there has been no viable reason put forward to the investigation that would show why the organisation would require the laptop back under such urgent circumstances when [the complainant] notified [the respondent] of his absence and was able to prevent the complainant for working. Furthermore, the laptop was not removed from him when he was unwell in the past’.
Therefore, the wonder is not only how the investigator concluded that this incident gives rise to ‘a further case to answer’, (whatever exactly she meant by this equivocal and unhelpful phrase) but how it became elevated to the level of an allegation of gross misconduct, and this will require to be further examined.
As set out in his appeal letter of December 21st, 2021, the complainant submitted that the investigator ‘substantially’ exonerated him in relation to this.
The complainant’s attendance at work on September 2nd is in a different category of gravity.
In my opinion, it provided sufficient grounds on its own for disciplinary action with termination of employment well within the range of reasonable sanctions if it had been simply expressed as a failure to follow an instruction not to attend work, having regard to all the circumstances, and until he was certified well enough to do so.
The investigator reasonably, (if euphemistically) concludes that the was ‘a clear lack of communication between the parties’. (In fact, the text exchanges set out in the Appeal decision show a bad-tempered and angry communication between the parties, which indeed ought to have provided some context for an analysis of this incident by the investigator which was sadly lacking).
She ‘plumps’ for the start date of August 24th despite being advised of an alternative possibility by the complainant.
In fact, she was in no position to reach a definitive conclusion either way about the complainant’s state of infection, and neither was the complainant, who could only speculate about the date. His evidence was that at the point his GP suggested a test even he (the GP) thought it unlikely that the complainant had the virus.
The complainant’s representative made a submission that the investigator had failed to take into account its submission on the correct basis for calculating the start date of the complainant’s infection. She ought to at least have considered it.
While it is a critical finding that the complainant did not comply with a reasonable management request to not attend the workplace, strictly speaking this is not the primary allegation he was facing. The allegation was that he attended while unwell with Covid-19. The investigator reached NO conclusion on this point beyond speculating about the applicability of the self-isolation guidelines.
The complainant was invited to a disciplinary hearing by Paula Kelly on December 4th, 2021. He was advised that he could be accompanied at the hearing and told that the issues were potentially regarded as gross misconduct. Phase 3; The disciplinary Hearing
Following the communication of the report to the complainant he received a letter dated December 4th from Ms. Paula Kelly inviting him to a disciplinary hearing. She was to chair the disciplinary hearing along with a representative of the same HR company which carried out the investigation.
Ms. Kelly, it appears, is in a close personal relationship with the respondent MD, Mr. Mark Gallagher.
The appeal decision maker felt that it would have been preferable that the person who conducted the disciplinary hearing was ‘at arm’s length’ from the respondent and I agree, although this was not sufficient to influence its consideration of the appeal, strangely.
The respondent witness, Mr. Gallagher was at pains to state that he had no role in the decision to terminate but this is not entirely credible or convincing. It is hard to believe that the owner of the business would abdicate all responsibility for the decision in a matter in which he had such an emotional and business investment, or that it was never discussed with the decision maker, with whom he was in an intimate relationship.
It would also have been preferable that the other person involved at the disciplinary stage was not a colleague of the investigator, as she was very likely to have had a hand in drafting the correspondence including the classification of the offences as gross misconduct.
In any event, at some stage someone reviewed the investigator’s report and her recommendations for ‘a further case to answer’ and concluded that that case was one of gross misconduct on all charges. In my view those related to the incidents other than the attendance at work on September 2nd were minor matters.
The complainant made a substantial submission in response.
It was to no avail.
On December 17th four of the allegations were upheld as gross misconduct and he was summarily dismissed. These included the one day’s absence on April 21st, some five months before his suspension, his failure to inform the company that he would not be attending from work on August 24th, and the laptop incident, all of which are considered to constitute gross misconduct, as well as the more serious matter of his attendance on September 2nd contrary to the respondent‘s instructions.
Phase 4; The Appeal.
The complainant appealed, saying in relation to three of the items that the investigation had exonerated him and again repeating the case about his attendance on September 2nd.
The appeal finding is a curious document that is strong on templates for assessing technical compliance with company procedures but displays a serious failure of critical analysis or understanding of the context of the appeal in reaching its conclusions. It was not that it was unaware of this context; it simply chose to ignore it, as we will see shortly.
While its author may say that it addressed the grounds of appeal as set out by the appellant it does so very narrowly and ignores entirely the inclusion of the charges of gross misconduct in respect of the minor charges against the complainant; something I may not do.
An appeal hearer is not confined to the narrow grounds expressed by an appellant if other substantial defects come to light or are transparent on the face of the record. In any event the terms of reference included a requirement to ‘establish whether the appropriate procedure’ under the company’s policy was followed. Compliance with such policies must be assessed by reference to the well-established law in relation to fair procedure and natural justice.
Regarding the laptop return, for example it concludes blandly that the appellant ‘did not follow a reasonable management instruction’ without any reference to the fact that this grounded a charge of gross misconduct.
Not every failure to follow a ‘reasonable management instruction’ is the same, and the circumstances in which the respondent sought the return of this piece of company property cannot so easily be detached from its obvious context; a context which as I have noted was well known to the appeal hearer.
Specifically. despite noting that the relationship between the parties was ‘acrimonious and turbulent’ (and it went all the way back to February 2019 in its review of this, for some reason) it failed to see any context in this for the rather unnecessary confrontation over the laptop, for example.
The respondent’s explanation for the sudden need to have the laptop repaired has a totally disingenuous ring to it (so too, his explanation for why he disabled it).
As noted above the appeal concluded that it would have been preferable that the person who conducted the disciplinary hearing ‘was at arm’s length’ from [the respondent] (i.e. not his girlfriend).
It went further in suggesting areas for future improvements in the process and recommended ‘transparency on the role of the nominated person to conduct the disciplinary hearing and their authority’.
Quite what it meant by this is not clear, but here are two observations by the appeal hearer clearly expressing relatively serious doubts about the conduct of the disciplinary hearing that touch on one of the central tenets of fairness in such matters; the principle of ‘nemo judex in causa sua’.
Yet, despite clearly harbouring these concerns they did not trouble it sufficiently to wonder about the integrity of the process. At the very least it should have explained why it felt it safe not to do so, and why the lack of an ‘arm’s length’ decision maker or the deficit in transparency had no bearing on the outcome.
In fact, its conclusion was that ‘we do not find that the disciplinary decision is flawed’ despite the manifest flaws it identified itself, and then proceeded to ignore.
So, this perpetuated the damage begun at the disciplinary stage.
In summary, all of these actions and the conduct of the process lacked the necessary detachment, objectivity and fairness required in such a process and they were fundamentally unfair. As noted, it seems to me highly improbable that Mr. Gallagher remained as isolated from them as he asserts.
In my opinion, the complainant’s actions in attending at his workplace on September 2nd contrary to the instructions of his employer, taken on their own would have put him at risk of proceedings that might result in the termination of his employment (subject to what follows below on the contribution of this to the termination).
They would have been better addressed as a simple failure to carry out a management instruction (as indeed the investigator referred to) than as a discussion about whether the complainant continued to be infectious, which none of those involved had the professional competence to determine.
The appeal decision maker likewise concluded that the complainant’s offence, and the justification for his dismissal was that ‘he put the health of others in danger’; a conclusion for which she did not have a scintilla of evidence.
But all such proceedings must be fair and as free as possible of the taint of bias and prejudice. A person facing them must get an unbiased hearing on the facts of the case and the grounds for any sanction must be clearly related and proportionate to the alleged offence or offences.
They must also be free of the taint of any animus against an employee that might interfere with the detachment necessary in a fair process.
In this case there are too many indicators of a pre-determined outcome; the ridiculous elevation of minor and trivial matters to that of gross misconduct being the most serious, best illustrated by the fact that a five-month old absence of one day was dragged in to bulk up the charges.
There was the suspension without pay, which took High Court proceedings to remedy, the failure to properly and objectively evaluate the evidence including the investigator’s findings and the submissions of the complainant.
There are the serious doubts over the independence of the decision maker and the actual role of the respondent in the background, the lack of rigour and critical analysis in the appeal and its manifestly perverse conclusions.
All of these factors combine to deprive the process of the required standard of fairness and result in the termination being procedurally unfair.
The Payment of Wages Act complaints
Examination of this aspect of the complaint is complicated by a number of problems.
There are claims for commission, wages, annual leave, and notice.
Firstly, the cognisable period runs from September 25th, 2021, and bearing in mind that the complainant was suspended on September 2nd, while he may argue that he was eligible for the so-called ‘trailing’ commission payments, he did not actually generate any new business after that.
The second significant obstacle is the lack of hard information or evidence in respect of the sales generated by the complainant and the commission that might then arise.
The respondent was not cooperative in this regard (and not only in this regard) and made it clear that it had no documentary information or records available to assist the hearing (although the respondent witness said in evidence that he had given material to his representative which, inexplicably, had not been made available to the hearing).
Details were submitted on the complainant’s earnings in previous years, and some projection by the complainant on his likely earnings in 2021.
Again, there was a history of previous difficulty between the parties in this regard. One of which resulted in a settlement in the amount of €2094 in January 2021.
However, it was impossible on the basis of some very confusing data to identify actual payments due to the complainant which he said had not been made, and the complainant did not particularise his claim in this regard, a point relied on by the respondent, which simply stated that the complainant ‘received all payment due’.
The complainant said he had been denied access to records required to enable him to do this.
In respect of the ‘trailing commission’ the respondent said that this did not arise as the accounts in respect of which it would have arisen were assigned to other personnel to comply with Central Bank rules.
I can find no legal basis for extending the cognisable period. No argument has been made that would ‘explain and excuse’ his failure to make the complaint earlier and the cognisable period therefore commences on September 25th, 2021. Accordingly, the complainant has failed to make out a sufficient case on this point. I can find no evidence that grounds this aspect of the complaint.
The position regarding annual leave is more easily identified.
The respondent provided a list to the hearing of twelve days on which it says that the complainant took annual leave. As has been noted above, these days on which the complainant was alleged to have been on annual leave, were also the absences which grounded the charges investigated before the disciplinary process.
The investigator concluded that ‘there was no verifiable evidence submitted to the investigation to suggest [the complainant] was absent on the other given dates’, other than April 21st, which then formed the basis for the allegation of gross misconduct.
The respondent cannot have it both ways.
If his defence at the hearing is only as stated, then it falls apart in the face of the investigator’s earlier conclusions and I can safely conclude that the complainant is owed those eleven days’ leave at least.
The respondent failed to show that his annual leave for the period of suspension had been included in payments on conclusion of the relations and I assess that his entitlement arising in that period of almost four months as a further six days.
In respect of the failure to give him notice, it follows my finding that the termination was unfair that he was entitled to notice.
Summary of Conclusions.
I have no difficulty in finding that the dismissal was unfair for the reasons set out above related to the requirements to conduct a fair process.
In assessing the complainant’s losses attributable to the termination, I am obliged to consider both his efforts at mitigation and his contribution to his dismissal and I have fully reviewed the authorities submitted by the respondent in regard to both.
The complainant conceded in cross examination that, while there were various, limited steps taken to put himself in the way of employment, he made only one actual job application.
He argues that his employment efforts were greatly curtailed by having a finding of gross misconduct against him and that his preference was to work towards the Central Bank requirements for setting himself up as an independent broker.
He says that the actions (or inaction) of the respondent were a negative factor here and obstructed his chances of setting up his own brokerage, and I take this into account. Certainly, the respondent confirmed that he did nothing to assist the complainant in this regard. Therefore, these efforts may be regarded as part of his efforts to mitigate his loss, limited as they may be.
I propose to take this fully into account in the context of the other factors.
The respondent also relied on case law in respect of when a complainant makes a substantial contribution to the termination in relation to his actions on September 2nd, 2021, and submitted that the complainant contributed ‘100%’ to his own dismissal and urged a ‘nil’ award of compensation.
In my opinion that is not a just conclusion that can be reached here.
I have been critical here of the complainant’s decision to attend at work on September 2nd and opined that it could well have grounded disciplinary action which, if properly concluded might have put his employment at risk.
That is different to a finding that the employee ‘contributed significantly’ to his dismissal, much less 100%.
On the facts of this case, it will never be known what a fair disciplinary tribunal at the level of the workplace would have made of the complainant’s defence of his actions, (his calculation of the infected period) or what sanction might have been applied by a fair independent decision maker had this, and the other allegations against him been defined appropriate to their gravity.
In that regard I easily distinguish this case from the conclusions in Synergy Security Solutions v Dusa, and Mlynarski v Pianos Plus relied on by the respondent, or A Beauty Therapist v A Beauty Clinic (citations above) wherein it was found that the complainant contributed ‘100%’ to the dismissal.
In Bridget Clarke v Paul Connolly (ADJ-00034380) the complainant had been overpaying herself and could not provide an explanation for having done so. This is an entirely different set of facts to those here.
In this case, the actual contribution of the complainant to his dismissal (his failure to respect an instruction not to come to work) was never properly processed and remains open to argument, and as noted even in the respondent‘s submission was ‘in dispute’, to say nothing of the sloppy and imprecise manner in which the charge against him was drafted.
In relation to the efforts to mitigate his loss (in respect of which the evidence was that it was limited) I have substantially discounted the award that otherwise might be made, but it would not be just or equitable on these facts to make a ‘nil’ award in respect of the unfair dismissal.
Therefore, while I will take these discounting factors into account, the very serious flaws in the conduct of the process by the respondent and the breach of the complainant’s constitutional rights are also factors in determining the justice and equity of any award of compensation, and neither of those principles would be served by declining to make any award.
There was some difficulty in establishing what the complainant was actually paid. His gross wage is stated on the complaint form to be €5551.00 per month (€66,612 per annum) This accords with what the respondent said in his evidence; €67,000.
I am satisfied that this is something of an understatement due to the assignment of some of his earnings to a pension fund, (this was not an employer contribution, but his actual income assigned to his pension) but I have no reliable basis for establishing what that was. Submissions were made that, in total, his salary was in the region of €80,000. I did not have sufficient evidence to go beyond the figure of €67,000 and that will be my guide below.
Absent the failure to mitigate his losses his compensation might would have been very significantly higher. I uphold complaint CA-00049323-001; Unfair Dismissal Act, 1977, and find that the complainant was unfairly dismissed. Taking all relevant factors into account and having regard to the justice and equity of the case, I award him €12,000 in respect of the unfair dismissal complaint.
Complaint CA-00049323-002; Payment of Wages Act, 1991, is well founded. He is entitled to four weeks’ notice I award him €5551.00 in respect of notice payment. I award him €4718.35 in respect of his annual leave entitlement (€277.55 per day for seventeen days). |
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I uphold complaint CA-00049323-001 under the Unfair Dismissals Act, 1977, and find that the complainant was unfairly dismissed. Taking all relevant factors into account and having regard to the justice and equity of the case, I award him €12,000 in respect of the unfair dismissal complaint.
Complaint CA-00049323-002 under the Payment of Wages Act, 1991, is well founded. He is entitled to four weeks’ notice, and I award him €5551.00 in respect of notice payment. I award him €4718.35 in respect of his untaken annual leave entitlement. |
Dated: 26th October 2023
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words: Unfair Dismissal, Payment of Wages