Complainant

Respondent

Parties

Barry  Naughton

Protum Services

Representatives

Self-Represented

John A Sinnott

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061010-004

15/02/2024

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

CA-00061010-001

08/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00061010-002

08/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061010-003

08/01/2024

The issues in contention concerned the alleged Unfair Dismissal of a Foreman by a specialist Building Services Company.

The Employment began on or about the 1st of November 2018 and ended on the 8th December 2013.

The Gross Pay was stated to have been €1,517 per fortnight for a 39-hour week.

CA-00061010-001

The Complainant represented himself.

He had been called to a Disciplinary meeting in the Company premises on the 1st December 2023. He was accused of breaching Company Rules (using a company Van for Personal travel). He was also accused of interfering/(disconnecting) with an Electronic Vehicle tracker unit that the Respondent Company had fitted to the vehicle at the start of 2023. A further meeting took place on the 3/4th December 2023 arising from which he was dismissed for Gross Misconduct. He received a Dismissal letter on the 8th December 2023 confirming his dismissal.

The Complainant alleged that he had been dismissed to make room for a more favoured colleague of the Owner. The Business was having cash flow problems, and it was claimed economies had to be made. The issue over the use of the Company van was a complete fabrication to cover this Unfair Dismissal.

No normal HR procedures were followed – no proper investigation took place. He was never given any written or indeed oral warnings. There were many anomalies in the Company “custom and practice” as regards use of Vans. For example, he had been allowed use his allocated van to transport motor bikes to bike races. Most of his “private use” was collecting his daughter from sports events. It was well known to all staff. The Principal Respondent regularly used his own allocated van for fishing trips with other staff.

To facilitate the Respondent, he had often made use of his own Personally owned vehicle, on Company work jobs, when a van was not available. This was all swept under the carpet. It was a situation that a cost reduction measure had to be found and it suited the Respondent to make him the victim.

He was not afforded the opportunity of proper HR procedures or an Appeal to a properly Independent Person.

CA-00061010-001

The Respondent was represented by Mr J Murphy, Solicitor. Oral Testimony was given. A written submission was provided.

It was submitted that the Respondent company had in March 2022 reviewed, in an effort to monitor costs closely, all their operations. It was identified that savings could be made in Vehicle Operations, Job Scheduling etc and reduce Vehicle insurance costs by fitting an electronic tracking device to all vans. As an aside, it would make easy identification of non-Company use of the vans possible although this was never the intention. All employees were informed of this situation. It was also in the Employee’s Contracts of Employment.

In the course of the year 2022 and into 2023 unusual occurrences began to emerge as regards the Complainant’s van. In December 2022, for example, the Respondent found the tracking device disconnected and sitting loose in the Complainant’s van. An incident arose with a delayed job in Wicklow where the customer alleged that the Complainant had left early. The Respondent contacted the Electronic Tracking Company who reported back that the Complainant device was regularly offline – not being powered up properly. The Respondent then decided to covertly “hard wire” a device in the Complainant’s van in addition to the Dashboard Tracker.  By the beginning of November, it was clear that considerable unrecorded and unexplained mileage (in excess of 1,000 miles) was being done – the anomaly was revealed as the difference between the Hard-Wired tracker and the Plug In Tracker.

The Respondent regarded this as a very serious matter and a first meeting was held on the 1st December 2023. The Respondent provided the Complainant with all available evidence regarding the use of the van and the records from the Tracking devices. The Complainant had no real answer other than the personal use of the vans was a commonplace employee practice. The Respondent relied on the Tracking Device evidence to contradict this fact.  The Respondent then asked the Complainant regarding allegations that he was regularly “Unplugging the Tracker”. The Complainant denied this.  The Respondent stated that he was going to issue a Final written warning. The meeting was adjourned until Tuesday 4th December 2023. At this meeting the Complainant asked for another chance and promised that he would never in future use the van for Personal use.

The Respondent stated that the real issue was the Breach of Trust. The Complainant knew the purpose of the Tracker in the Van but had been regularly unplugging it. The evidence was there to support this point. This was a major Breach of Trust with the Respondent.  A dismissal for Gross Misconduct was the only option available. This was confirmed by letter of the 8th December 2023.

In summary, the Respondent view was that the misuse of the Van for Personal mileage was a very serious issue that had warranted a Final Written Warning.  The Contract of Employment was clear on this point.

However, the wilful interference with the Tracking device to conceal his mileage was a grievous Breach of Trust with the Respondent. The Complainant and the Respondent Principals had always been good friends. They had stood up for the Complainant in numerous incidents over the years. The wilful disconnection of the Tracker Device was a complete breach of trust between the Parties. An Employment relationship could not continue in this context.

CA-00061010-001

3:1      Legal Summary – Unfair Dismissals Act,1977, Statutory Instrument SI 146 of 2000 – Industrial Relations Act,1990 (Code of Practice on Grievance and Disciplinary Procedures) – Rules of Natural Justice & Legal precedents.

The Unfair Dismissals Act,1977 and Si 146 of 2000, absolutely, rely on the rules of Natural Justice. As mentioned, at the Hearing by the Adjudicator, the major headline case has always been Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 where Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

In plain English this has always been taken to mean that the Employee is fully briefed in advance of any “charges” against him, that a full investigation takes place by a person who Is not going to conduct a follow up Disciplinary meeting and is the Disciplinary Decision maker. After a Disciplinary meeting/Decision, an Independent Appeal should always be offered.

In addition, the question of the “Band of Reasonableness” has to be considered – in other words was the outcome one that the “majority of Employers” in the industry would deem “Reasonable” i.e. not unwarranted and unnecessary arbitrary or harsh. It had to be seen as falling within the “Band of Reasonableness”.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of “reasonableness” to

1.    the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.    whether the procedures adopted were fair and reasonable and

3.    the reasonableness of the conclusion arrived at by the Respondent.

3:2        The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

However, all case rest on their own evidence and factual matrix and these will now be examined.

3:3       Consideration of Evidence Presented.

Written evidence was presented but the Oral Testimony on the Hearing Day from the Complainant and the Respondent Principal was the crucial factor.

To the Adjudicator it was clear that there was no doubt that the Tracking device had been regularly disconnected. The anomaly between the Hard-Wired device and the Dashboard instrument was impossible to reconcile.

From the Oral testimony and the Cross Examinations by both sides it was also clear that there were, to say the least, some considerable ambiguities, (notwithstanding Clause 11.4 of the Contract of Employment), in the day-to-day custom and practice regarding the personal use of the Company vans. The Respondent appeared to accept that a degree of minor infarction was acceptable. The issue of the Complainant allegedly making unexplained trips to Northern Ireland did not fall into that minor category in the Respondent opinion. The Complainant was somewhat vague is some of his explanations of these point

It was clear from the sworn Testimony of the Respondent employer that the rationale and day to day reasons for the use of the on-board tracking device had been fully explained to all employees. In this context it has to be accepted by the Adjudicator that the Complainant’s actions in wilfully disconnecting his tracker was a major breach of Company Rules.

From an Unfair Dismissals point of view, having heard a lot of evidence, the issue became one of Proper Procedures & Natural Justice as required by the Act and SI 146 of 2000. The Respondent had conducted quite a major investigation on the Tracker with the supplying Electronic Company. This had led to the installation of the hidden tracker in the Complainants’ van. The Complainant had never been appraised of this or given warnings as to Respondent concerns. From a Natural Justice perspective this was troubling for the Adjudicator.

The Respondent stated in the minute of the 1st December 2023 meeting that prior to the meeting he had made his mind up to issue a Final Written warning. From a Natural justice point of view this was a decision taken before the Complainant could have had an opportunity to respond with any possible mitigating circumstances. The next meeting on the 4th December 2023 was brief. The Complaint asked for another chance but his was set again the issue of the clear and wilful disconnection of the Tracker as a major breach of Trusts with a formerly very valued employee.

Considering the three questions raised in the Hennessy v Read and Write Shop Ltd. UD192/1978.case

1.    the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.    whether the procedures adopted were fair and reasonable and

3.    the reasonableness of the conclusion arrived at by the Respondent.

The investigation was comprehensive and clear-cut evidence was available. However, the input of the Complainant was, prior to the meeting of the 1st December, negligible. He did not appear to have had any advance warning of what the Respondent was doing v/v tracker devices, installing a covert Hard-Wired device being a troubling example.

In terms of Procedures the question of the same person conducting the Investigation and the Discipline hearing was also very open to question. Finally, the lack of any Appeal being offered was never fully explained by the Respondent.

The Decision to Dismiss was one for the Respondent Employer. It appeared to have arisen over the days between the 1st December (a proposed Final Warning) and the 4th December 2023. The issue of the break down in personal Trust between the two individuals appeared to have been a critical factor.

It is useful to quote again Mr Justice Flood in Frizell v New Ross Credit Union

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

3:4          Summary

The Adjudication view in this case has to be that the Dismissal was Unfair.

This view is arrived at from a review of all the evidence and Oral testimony and especially the lack of accepted Natural Justice procedures, especially the lack of an Appeal.

However, it has to set against the background circumstances of a very considerable Complainant contribution in interfering with the electronic devices

This factor will have to influence a decision on Redress.

In final Summary the Dismissal was Unfair largely on procedural grounds.

Unfair Dismissal, Lack of Procedures.