Complainant

Respondent

Parties

Patrick  McGrath

Uber Ireland Center of Excellence Limited

Representatives

  Self-represented

MP Guinness BL instructed by Mason Hayes & Curran LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00051075-001

09/06/2022

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

CA-00051075-002

09/06/2022

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

CA-00051075-003

09/06/2022

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

CA-00051075-004

09/06/2022

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

CA-00051075-005

09/06/2022

On 9 September 2022, the Complainant referred these claims against Uber Ireland Center of Excellence Limited to the Director General of the WRC. He also referred identical claims against Uber Ireland Technologies Limited.

The Respondent rejects the claims.

At the adjudication hearing, the Complainant confirmed that he was employed by Uber Ireland Center of Excellence Limited. His contract and payslips showed Uber Ireland Center of Excellence Limited as the employer. However, he thought that some people involved in his case were working for Uber Ireland Technologies Limited and, therefore, he was not sure who was the correct Respondent.

By letter dated 19 October 2022 and email dated 28 February 2023, the Respondent informed the WRC that the appropriate Respondent in this case is Uber Ireland Centre of Excellence, the Complainant’s former employer.

On 9 September 2022, the Complainant referred to the Director General of the WRC his claims against Uber Ireland Center of Excellence Limited and identical claims against Uber Ireland Technologies Limited.

At the adjudication hearing on 27 April 2023, the Complainant conceded that he was employed by Uber Ireland Center of Excellence Limited. He confirmed that his contract of employment showed Uber Ireland Center of Excellence Limited as his employer.

I note that the Employment Agreement dated 18 July 2016 exhibited at the adjudication hearing named Uber Ireland Center of Excellence as the employer.

Based on the submissions of the parties and the evidence before me, I find that Uber Ireland Center of Excellence Limited is the correct respondent.

The Complainant submits that he did not receive his statutory minimum period of notice on the termination of his employment or payment in lieu thereof. The Complainant asserts that his employment was terminated by letter dated 22 February 2022. He was advised that he would receive payment for minimum notice. He has not received this payment.

The Complainant submits that under the terms of the Minimum Notice and Terms of Employment Acts, 1973-2005, an employer who intends to terminate a contract of employment must provide the employee with specified minimum notice. Employers must give employees, who have been in continuous service, notice dependent on the length of their service. In the Complainant’s case it is 4 weeks. The Respondent gave the Complainant, who was heading into his sixth year of employment, just 2 weeks’ notice and it informed him of the decision by email. Failure by the Respondent to give the requisite minimum notice constitutes a breach of statute.

At the adjudication hearing, the Complainant said that an employee who worked for an employer between 5 and 10 years should receive 10 weeks’ notice. He only received two weeks. The Complainant said that it is not about a payment but the notice he would have been entitled to.

The Respondent submits that the Complainant was issued with notice on the termination of his employment on 22 February 2022. The Complainant received two weeks’ notice, which meant that his employment terminated on 8 March 2022.

As the Complainant was certified unfit to work (and therefore not available for work), and all his sick leave was unpaid, he was not entitled to receive pay from the Respondent for the duration of his notice period.

Notwithstanding this, the Respondent put through his notice pay as follows:

·        Normal salary was included in February 2022 payroll (reflecting the first week of notice)

·        40 hours’ basic pay was included in the March 2022 payroll (reflecting the second week of notice).

The Respondent processed payment for 80.32 hours’ of accrued annual leave (equivalent of €1,123.71).

The Respondent submits that unpaid sick leave hours are normally deducted a month in arrears. This means that the Respondent deducts the equivalent sick leave from one month in the following month’s pay.

The Complainant was absent on unpaid sick leave for several months up to his dismissal (up to and including the effective date of dismissal on 8 March 2022).

In order to recoup the value of the sick leave hours paid to the Complainant in February 2022 and March 2022 payrolls (160 hours and 40 hours, respectively), the Respondent deducted a total of 200 sick hours from the Complainant’s March 2022 pay, resulting in a negative balance of €962.86 gross on the March 2022 payslip, i.e. zero net pay.

In fact, the Complainant owed the Respondent €962.86 after these sick leave hours were deducted from the March 2022 pay. However, as outlined in the email to the Complainant, the Respondent advised the Complainant that it would not be pursuing the remaining balance.

The Respondent paid all sums due and owing to the Complainant.

At the adjudication hearing, the Respondent said that no matter what period of notice the Complainant was entitled to, he was unavailable for work. Even if the Respondent got the number of weeks wrong, the Complainant would not have been entitled to a payment.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, as amended obliges the Respondent to give the Complainant four weeks’ notice of the date of termination of the contract of employment on the basis of his service.

4. Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

Section 12 of the Act provides as follows.

12. Decision of adjudication officer under section 41 of Workplace Relations Act 2015

(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

Schedule 2 of the Act states:

Second Schedule Rights of Employee During Period of Notice

1.

Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.

Employments for which there are normal working hours

2.

(a)

(i) An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer.

(ii) In this subparagraph “normal working hours” in the case of an employee who is normally expected to work overtime, include the hours during which such overtime is usually worked.

(b) In any case where an employee's pay is not wholly calculated by reference to time, the pay which his employer is bound to pay him under subpara.(a) shall be calculated by reference to the average rate of pay earned by the employee in respect of any time worked during the thirteen weeks next preceding the giving of notice.

Employments for which there are no normal working hours

3.

Subject to para.4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.

4.

An employer shall not be liable to pay to his employee any sum under para.3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said para.3.

The Complainant contends that the Respondent failed to give him four weeks’ notice he was entitled in accordance with the provisions of the Act.

There was no dispute that the Respondent informed the Complainant on 22 February 2022 that his employment would be terminated on 8 March 2022, thereby giving him two weeks’ notice. I find that the Respondent failed to give the Complainant his four weeks’ notice as required by the Act.

Section 12 provided that an Adjudication Officer can make a decision to direct an employer to pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

In Intec Billing Ireland v Lally PWD 39/2016 the Labour Court has held that para.4 applies where an employee is not fit for work during the notice period and that and the employee has no entitlement to pay.

The Employment Appeals Tribunal has held that, if notice had been given and the employee could not have worked out that notice because he or she was sick, there is no loss due to any contravention of the Minimum Notice and Terms of Employment Act 1973. In such circumstances, the loss is due instead to the employee’s inability to earn (see, for instance, McLoughlin v DNU Ltd MN744/1987, Lehane v Feeney UD 868/1987 and McIntyre v Hendrik Haulage Ltd MN2623/1992).

I am satisfied, therefore, that an employee who is ill and not available for work during the notice period is not entitled to any compensation, as that employee is deemed unavailable for work.

Having regard to the evidence before me, I am satisfied that the Complainant was absent from work on certified sick leave when the Respondent notified him on 22 February 2022 that his employment was being terminated. The Complainant remained unwell and in receipt of Illness Benefit until November 2023. I find that the Complainant was not available for work during the two weeks of notice period he was given by the Respondent. He would also not have been available for work had he been given his statutory notice period (of four weeks) and therefore, is not entitled to any compensation, as he was unavailable for work.

The Complainant, though entitled to notice of termination of employment from his employer, was not, due to illness, ready to work for his employer during that notice period and accordingly has no entitlement to payment in respect of the period of notice.

I find that the Respondent contravened section 4 of the Act. Accordingly, I declare this complaint to be well founded. However, as the Complainant sustained no loss due to the Respondent's contravention of the Act, therefore, no compensation is warranted.

Summary of the Respondent’s written submission received on 6 March 2023.

The Complainant commenced employment with the Respondent on 2 August 2016. At the time his employment ended on 8 March 2022 he was employed as a Policy Adjudication Agent.

The Complainant was absent from his employment on long term medically certified sick leave since in or about April 2021.

The Complainant was employed under a contract of employment and was also subject to the various policies and procedures available on the internal intranet. (A copy of the contract copies of the employee handbook and relevant policies were exhibited at the hearing).

Clause 10 of the Complainant’s contract of employment sets out the policy in relation to sickness. It states:

‘If the Employee is sick or unable to perform the Employee’s duties under this Agreement for any other reason, the Employee must inform Uber thereof before the Employee’s start time on the first day of absence.

The Employee is required to provide a medical certificate in a form satisfactory to Uber, stating the nature of the Employee’s illness and the likely duration of the absence, for all absences from work for more than two consecutive working days. Furthermore, Uber reserves the right to request all absences on sick leave to be medically certified.’

The Complainant was put on a number of Performance Improvement Plans (‘PIP’) throughout his employment in relation to absence and lateness and also in relation to certain behavioural issues in meetings. In advance of a PIP, the Complainant was informed that further instances of absences or lateness would likely result in a PIP. The Complainant had 17 incidences of lateness since December 2018 up to April 2020 which ranged from three minutes to four hours. He was expected to be clocked in by the start of his shift each day. He was also required to adhere to the contact policy in place for lateness and expected to adhere to the absence notification policy for absences and lates during e-working from home being in place. Text messages were not accepted.

In addition, there was an issue regarding his behaviour in one-to-one interactions. The Complainant was spoken to in relation to his conduct in one-to-one meetings. The Complainant’s Team Lead and Comm Ops manager explained that the Complainant should not speak over his Team Lead or Comm Ops manager in these settings, that he should be receptive to feedback and also not repeat instances from the past that were not related to the conversation at hand. This was documented in his one-to-one file.

First PIP – 28 August 2019

The first PIP dated 28 August 2019 was in relation to the Complainant’s lateness and absence which were deemed excessive over the previous twelve months. In June 2019, the Complainant was advised by his team leader that his lateness and absence were deemed excessive over the last 12 months and he was advised that further instances of absences or lateness would likely result in a PIP. The first PIP had a planned completion date of 31 October 2019. The Complainant successfully completed that PIP. The Complainant was informed of his successful completion of the PIP on 1 November 2019.

Second PIP – 4 December 2019

Shortly after the completion of the first PIP, there was a further incident of lateness of 1 hour and 45 minutes and therefore, from 4 December 2019 a second PIP was implemented with effect for three months with a planned completion date of 4 March 2020. The PIP was reviewed on 3 March 2020 however, due to an incidence of lateness on 15 January 2020, the decision was made to extend the PIP by four weeks up until 3 April 2020. This was to give the Complainant the opportunity to demonstrate his continued commitment to changing his behaviour. There were weekly meetings to check in and ensure the target was being met. The Complainant completed the four-month extended PIP on 4 April 2020 and he was advised on 17 April 2020 that should there be any reoccurrence of those issues relating to lateness or absences, further disciplinary action could be taken.

Third PIP / AIP – 28 April 2020

On 24 April 2020 the Complainant clocked in four hours after his scheduled work time. In addition, he did not adhere to the contact policy in place for lateness and therefore an Attendance Improvement Plan (‘AIP’) commenced on 28 April 2020 for six weeks with a planned completion date of 9 June 2020. The Complainant completed the AIP successfully.

Fourth PIP – 2 April 2021

Following the completion of the previous PIPs/AIP, a number of further issues arose with the Complainant’s performance. On 2 April 2021 he was informed that he was receiving a PIP to address persistent performance concerns regarding the following matters:

• Time keeping • Absences • Quality Text Scores • Behaviour in 1:1 interactions

This PIP commenced from 2 April 2021 and would be in effect for three months until 1 July 2021. The Complainant was expected to show immediate and sustained improvement in the key areas identified. On 7 April 2021 the Complainant had his first PIP review meeting.

A further meeting took place on 16 April 2021 following which he was written to by Catherine Bourke, Community Operations Manager. In that letter she informed the Complainant of the failure of his Performance Improvement Plan because of his conduct and behaviour in meetings. As a result, she decided to issue a first written warning which would remain live for six months. He had the right to appeal that decision. He did not appeal the decision within the relevant appeal timeframe.

Fifth PIP – 16 April 2021

On the same day (16 April 2021) the Complainant received a further PIP to address the same persistent performance concerns. On 23 April 2021 the Complainant had a PIP review meeting.

On 27 April 2021 the Complainant was written to by Catherine Bourke and she confirmed that he had failed his PIP with regard to the two following areas:

• Three days of uncertified absence.

• He had failed to meet the expectation of his PIP in his review meeting with his Team Lead on both 16 April and 23 April by repeatedly raising past events from previous years that were not connected to his PIP.

He was informed that he was being issued with a final written warning which would remain live for twelve months. He was also informed that he would be commencing a new PIP to address the ongoing behavioural issues commencing that day, 27 April 2021.

Appeal of final written warning

On 3 May 2021 the Complainant appealed the final written warning. He then went on annual leave. He was emailed twice to give him an option of scheduling the appeal, however no reply was received. The Complainant then went on certified sick leave commencing 24 May 2021.

The Complainant was informed of the outcome of the appeal of the final written warning by letter dated 16 June 2021. Claire Porter, Senior Comm Ops Manager, decided that the Complainant should have been given notice regarding the disciplinary nature of the meeting and an opportunity to invite witnesses to attend on his behalf. She believed it appropriate to overturn the decision to issue him with a final written warning. However, she was satisfied that there were genuine concerns in relation to the Complainant’s performance, which should be addressed in the context of a formal disciplinary hearing. She directed that a new disciplinary hearing should be carried out with the Complainant given advance notice of the hearing, given a full opportunity to prepare any comments/submissions and to call any relevant witnesses.

By letter dated 17 June 2021, Clodagh Holohan, Senior HR Specialist, wrote to the Complainant expressing serious concern that he was failing to comply with the Respondent’s sickness policy, by failing to telephone in relation to his absence and failing to provide medical certificates in respect of his period of absence. This letter set out the requirements to be met by the Complainant. There were ongoing email exchanges with the Complainant over the following weeks and a further letter issued on 2 July 2021 again expressing concern that having commenced sickness absence on 24 May the Complainant only sent in a certificate on 17 June, covering the period 7 June -5 July 2021, leaving two weeks of sick leave uncertified. This letter highlighted the seriousness of this issue and outlined that the Respondent would be addressing the matter formally.

Fresh disciplinary process

The Complainant was also informed in the letter that, in line with the previous appeal outcome, the Respondent was organising a fresh disciplinary process to address the previous concerns in relation to his performance and to address the previous failure to provide medical certificates in a timely manner. The Complainant was advised that he would be given a full opportunity to raise concerns he had in relation to the recent PIP at the hearing, to include concerns relating to Catherine Bourke’s alleged unfair treatment of him. The letter confirmed for the avoidance of doubt that he was required to provide a medical certificate covering any period of sickness absence.

The Complainant responded with a lengthy email on 5 July 2021 raising a number of issues with the whole PIP process and his understanding of the requirements regarding providing medical certificates. Ms Holohan responded by email 15 July 2021 confirming that all his concerns would be listened to at the fresh disciplinary hearing. She also confirmed that she was arranging for him to be assessed by an Occupational Health Specialist to see whether he was fit to engage in internal company processes. There were further email exchanges on the 19, 27, 28 July and 4 August and an appointment for 11 August 2021 was confirmed for an occupational health assessment with Medmark. The Complainant asked for a new HR person to look after his issues.

On 17 August 2021 Megan Marina, Associate HR Business Partner, sent a copy of the occupational health assessment report to the Complainant. The report stated:

‘Mr McGrath’s unresolved work issues are the primary barrier to his returning to work and addressing these is, in my opinion, in the best interest of his general wellbeing. In my opinion, Mr McGrath is medically fit to engage with his employer regarding work related matters. I recommend that any meetings are held on neutral grounds and that Mr McGrath is allowed to be accompanied by an appropriate person at any meetings for support. I further recommend that sufficient time is allowed for Mr McGrath to take regular rest breaks as required and that he is provided with written notes.’

Ms Marina confirmed that she would organise the disciplinary hearing and would write separately in relation to this. The Complainant responded saying this had compounded his stress and he was not sure he would be in a position to return to work the following week. He disputed that the Medmark report provided that he was fit to engage in a disciplinary process. He also stated, ‘I am not refusing to engage with the company procedures, I am stating that I will engage fully at the appropriate time, which is only after the events in April is investigated, the terms of my employment contract and the 1st warning which I vehemently refute is also investigated and ruled upon.’

By email dated 28 August 2021 Ms Marina acknowledged the Complainant’s email and confirmed that he was invited to a formal hearing to address the appeal of his first written warning and the failure of his PIP. The hearing was scheduled for 1 September and the Complainant was sent all relevant documents in advance.

The Complainant emailed on 31 August 2021 setting out lengthy arguments in relation to the process. He included a medical certificate from his doctor stating he was unfit to work. Ms Marina responded noting that the Complainant was stating he was unable to attend the meeting on advice from his doctor, but the doctor’s certificate related to fitness to work and not engaging in an internal process. The Complainant did not attend the hearing on 1 September 2021 and did not provide grounds of appeal for the appeal of the first written warning, as he had been asked to do. He continued to engage by email and did not accept that the Medmark report stated that he could engage in the disciplinary process.

On 15 September 2021 Ms Marina wrote to the Complainant reiterating that the medical assessment had confirmed that he was fit to engage in the process. She confirmed they would reschedule the hearing one last time to 22 September 2021 and asked him to provide grounds of appeal by 21 September, failing which the first written warning would stand, and the hearing would be limited to a consideration of his failure of the PIP. The Complainant was also asked to provide supporting documentation.

The Complainant continued to argue that he was not fit to engage and there were lengthy email exchanges on this point. As a result, the Respondent organised a further occupational health assessment by Medmark and the Complainant was again certified as fit to engage in the company’s internal processes including the disciplinary process. The Complainant was notified of a new hearing date of 22 October 2021. He was again asked to provide grounds of appeal and supporting documentation in advance of the hearing. He was also informed that if he did not attend or participate a decision would be made based on the available information. The Complainant emailed Ms Marina on 20 October 2021 and indicated that he would not attend the meeting as he was still certified as unfit to work. Ms Marina confirmed that the meeting would take place via zoom. As no grounds of appeal had been submitted, the first written warning remained.

By a letter dated 28 October 2021, the Complainant was written to in relation to the disciplinary hearing which he failed to attend. The letter confirmed that he was being issued with a final written warning. As the hearing took place on foot of the recommendation of Claire Porter as part of an appeal of the final written warning initially issued on 27 April 2021, the decision was final and there was no right of appeal.

Grievance

On 4 November 2021, the Complainant lodged a grievance in relation to various matters and by letter dated 10 November 2021, he was invited to a grievance investigation meeting with Hannah Roan, Senior Employee Relations Partner, scheduled for 12 November 2021 via zoom. He failed to attend the grievance investigation meeting, and the meeting was rescheduled to 25 November 2021, which he attended. By a letter dated 16 December 2021 the outcome of the grievance was communicated to the Complainant by Ms Roan who did not uphold his grievances. The Complainant was given the right to appeal which he exercised.

The Complainant was invited to send grounds of appeal in relation to the grievance appeal, which he failed to do within the timeframe provided for. He also sought the appointment of an external person to hear the appeal which was not accepted by the Respondent. Ultimately no appeal took place as the Complainant failed to engage and the grievance outcome remained.

Further disciplinary process

On 26 January 2022, the Complainant was invited to an investigation meeting on 1 February 2022 in relation to further absence certification issues. The Complainant refused to attend the investigation meeting. Catherine Kelly, Senior Community Operations Manager, conducted the investigation and concluded it based on the information available to her. In the investigation outcome letter dated 4 February 2022, Ms Kelly recommended that a formal disciplinary hearing be conducted.

The Complainant received copies of the supporting documentation on three occasions (26 January, 4 February and 7 February 2022).

In an email on 27 January 2022, the Complainant outlined that he would not be participating in any further internal hearings unless an external person was appointed to conduct the hearings. The Respondent outlined that it did not agree that it was necessary for the Complainant’s grievance appeal or the disciplinary investigation to be conducted by someone external to the Respondent.

By letter dated 7 February 2022 the Complainant was invited to a disciplinary hearing on 10 February 2022 via zoom. Jennifer Clancy (Operations Manager) was appointed to hear the disciplinary. The allegations were set out clearly and the Complainant was informed of his right to be represented by a colleague or a trade union. He was informed of his right to call witnesses and was provided with the disciplinary procedure and the relevant documentation to review in advance.

By letter dated 9 February 2022 the Complainant’s solicitor wrote to the Respondent expressing outrage that the Respondent was ‘accusing’ the Complainant of being fit for external hearings but not internal hearings. The letter stated ‘Just because our client has requested an external party to be appointed does not mean that he is fit to engage in any hearing at this time. Internal hearings constitute work and clearly our client’s General Practitioner has certified him as being unfit to work’. The letter also stated that the Complainant was not fit to engage in the disciplinary hearing. Solicitors on behalf of the Respondent replied by letter dated 10 February 2022 setting out clearly that Medmark had expressly confirmed the Complainant was fit to engage in the Respondent’s internal processes (including disciplinary hearings) notwithstanding that he was unfit to work. The letter strongly urged the Complainant to participate in the hearing where he would have an opportunity to raise any concerns he had.

The Complainant failed to attend the disciplinary hearing on 10 February 2022, which took place in his absence. The outcome was communicated by letter dated 22 February 2022. The letter confirmed that the Complainant’s employment was terminated for repeated failure to comply with the Respondent’s instructions regarding the provision of medical certificates particularly where the Complainant had not offered any explanation whatsoever for his non-compliance. The Complainant was given a right of appeal and asked to submit grounds of appeal within 5 days of the date of the letter.

Appeal of disciplinary outcome

By letter dated 25 February 2022 solicitors on behalf of the Complainant confirmed that he wished to appeal but no grounds of appeal were set out. The letter stated that ‘an independent chairperson, external to Uber, must be appointed to deal with the appeal.’

By letter dated 2 March 2022 solicitors on behalf of the Respondent replied confirming that time would be extended until close of business on 3 March 2022 for the Complainant to submit his grounds of appeal. The letter also confirmed that the Respondent did not agree that it was necessary or appropriate for a third party to be appointed to conduct the appeal hearing and that a Senior Community Operations Manager II (based in Lisbon) had been appointed to hear the appeal.

A further letter was received from the Complainant’s solicitor on 4 April 2022 in which he confirmed that the Complainant ‘requires’ an independent chairperson to hear the appeal and that grounds of appeal would be submitted to that chairperson. The letter sought the names, address and qualifications of an external and independent chairperson.

By letter dated 8 April 2022 solicitors on behalf of the Respondent confirmed that the deadline for the Complainant to submit his grounds of appeal (which deadline was extended) passed on 3 March 2022. In circumstances where the Complainant had failed to submit any grounds of appeal no appeal would take place and the decision to terminate the Complainant’s employment would stand.

LEGAL SUBMISSIONS

In Bank of Ireland -v- Reilly 2015 IEHC 241 Noonan J stated that;

‘the onus is on the employer to establish that there are substantial grounds justifying the dismissal and that have resulted wholly or mainly from one of the matters specified in Section 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the Court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the Court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland -v- Lindsay UK EAT/0506/09/DM. I respectfully agree with the views expressed by Judge Linane in Allied Irish Banks -v- Purcell 2012 23 ELR189, where she commented (at page 4) “references made to the decision of the Court of Appeal in British Leyland UK Limited -v- Swift 1981 IOLR91 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 of these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonable take a different view.”

It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one that EAT or the Court would have taken.’

The interaction between the ‘band of reasonable responses’ and procedural issues was analysed by Browne-Wilkinson J in Iceland Frozen Foods -v- Jones 1983 1 ICR17:

‘since the present state of the law can only be found by going through a number of different authorities, it may be convenient here if we should seek to summarise the present law.

We consider that the authorities establish that in all the correct approach for the Industrial Tribunal to adopt in answering the question posed by Section 57(3) of the Act of 1978 is as follows: 1. The starting point should always be the words of Section 57(3) themselves; 2. In applying this section, an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair; 3. In judging the reasonableness of the employer’s conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; 4. In many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; 5. The function of the Industrial Tribunal, as an Industrial Jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.

…..As an alternative ground relied on by the Industrial Tribunal, namely procedural unfairness, as we have said we do not think it the correct approach to deal separately with the reasonableness of the substantive decision to dismiss, and the reasonableness of the procedure adopted. The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all of the circumstances.’

In J Sainsbury plc -v- Hitt 2003 ICR 111 the United Kingdom Court of Appeal also approved this particular approach in the context of dismissal for misconduct. In that case, the Court of Appeal held that the Employment Tribunal had incorrectly substituted its own opinion as to what was a reasonable or adequate investigation, instead of applying the objective standard of the reasonable employer as to what was a reasonable investigation in the circumstances. The Court held that the range of reasonable responses test applied not only to the question of whether or not the suspected misconduct may have taken place but also the reasonableness of the decision to dismiss and to the reasonableness of the investigation.

In terms of the significance of any ‘procedural issues’, the Respondent relies on the test identified by Laffoy J in the High Court case of Shortt -v- Royal Liver Insurance Limited 2008 IEHC 322.

‘while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee’s employment and the circumstances surrounding the disciplinary action.’

The Adjudication Officer in The General Operator -v- The Manufacturing Company ADJ-00017530 confirmed that the requirements of fair procedures vary from case to case. It was confirmed there is no set formula that can be followed in each and every case. Instead, general principles have been identified over time, by reference to specific issues that arise on a case-by-case basis. Where it is suggested that an individual has been deprived of fair procedures, the key criterion for consideration is whether or not the procedural deficit exposed the individual to the risk of an unfair hearing or an unfair result.

It is submitted that applying the legal test described above there is no basis upon which to uphold the Complainant’s suggestion that an external person was required to be appointed to undertake the appeal hearing. The person appointed was based in Lisbon and had no previous dealings with the process. The Respondent conducted an investigation and disciplinary hearing which the Complainant failed to attend. He failed to submit grounds of appeal and therefore an appeal could not take place. The Complainant was informed of his right to be accompanied and at all times during the process the Complainant was given an opportunity to put his side forward. The Complainant simply refused to engage despite being able to fully engage in the grievance process. In the circumstances, it is submitted the decision to dismiss was fair, reasonable and proportionate in all of the circumstances.

CONCLUSION

The Complainant was not unfairly dismissed. He was dismissed for repeated failure to comply with Uber’s instructions regarding the provision of medical certificates particularly where the Complainant had not offered any explanation whatsoever for his non-compliance. The Respondent paid all sums due and owing to the Complainant.

Additional submissions

On 14 November 2023 and 23 February 2024, the Respondent furnished supplemental booklets of documents.

Summary of direct evidence and cross-examination of Ms Clodagh Holohan, HR Lead

Ms Holohan referred to the Complainant’s contract regarding sickness which requires a medical certificate for all absences for more than two consecutive days. The contract also provides that the Respondent reserves the right to request that all absences on sick leave are medically certified. She said that, if a high pattern of sickness absence is observed, the Respondent addresses it formally through e.g. a PIP. Regularly it is requested that all absences are certified in such circumstances.

Ms Holohan said that post-pandemic with working from home arrangements, staff were required to inform the Respondent of their absence within one hour of their start time by a phone call, texts were not accepted.

Ms Holohan said that the Respondent has a process and a form in place for employees to register any technical difficulties they might have with logging in.

Ms Holohan said that absences and lateness are reviewed periodically by Team Leaders across all employees and flagged, if necessary. The Complainant’s absences between 2018 and April 2020 were reviewed. There were 12 incidents of lateness.

Ms Holohan said that the Complainant emailed her in 2020 outlining his complaint regarding his manager, Ms Burke. She said that it was in the middle of pandemic, the Respondent was in the process of redundancies. She said that she responded that she skimmed through his email and will look into it. He replied, ‘no problem’. Ms Holohan then invited the Complainant to a video call, which took 45min-1hr. At the call, the Complainant confirmed that he did not want to proceed with a formal complaint. As a result, no further steps were taken and the matter was closed. The Complainant never asked to progress it and never raised a bullying complaint.

Ms Holohan said that she wrote to the Complainant on 17 June 2021 highlighting big gaps in the dates of his medical certificates and that he was required to deliver certificates for any period of absence.

Ms Holohan said that she, again, wrote to the Complainant on 2 July 2021 outlining concerns regarding his medical certs. She also addressed his complaints against Ms Burke and invited him to raise a complaint in line with the handbook.

Ms Holohan said that she was off for three weeks and Ms Marina dealt with the matter in her absence. She told Ms Marina that an occupational health report would come in. Ms Holohan said that the Respondent thought that it would be appropriate to address both matters together, grievance and the disciplinary process.

In cross-examination, Ms Holohan confirmed that she had one zoom meeting with the Complainant.

Ms Holohan said that back in 2021, she was advised that she could issue a warning following a failed PIP.

It was put to Ms Holohan that the Complainant delivered his certs for 24 May -7 June 2021. Ms Holohan said that at the time she believed that there was a gap.

It was put to Ms Holohan that the Complainant requested a new HR person. Ms Holohan clarified that Ms Marina took over in her absence. It was put to Ms Holohan she was ’secretly’ bcc’d on Ms Marina’s emails. Ms Holohan clarified that Ms Marina is not responsible for the Irish operation, she discussed the process with her, as she was the head of HR in Ireland.

The Complainant asked Ms Holohan if she wrote any letter that was not signed by her. Ms Holohan said that she would have provided a template to Ms Bourke.

Ms Holohan explained that she would have appointed people such as the appeals officer but she would have no involvement in their decisions.

Summary of direct evidence and cross-examination of Ms Catherine Bourke, Operations Manager at the relevant time

Ms Bourke said that there are 60 Team Leaders in the organisation, each has some 10-15 staff reporting to them.

Ms Bourke said that it is incorrect that the Complainant was targeted because of being a witness in a sexual harassment complaint. She said that there was no complaint made regarding alleged sexual harassment and there was no investigation. The Complainant was not a witness in any event, he was told about the alleged sexual harassment. He was not a witness, there was no complaint, no statement, and no investigation.

Ms Bourke referred to a document entitled Performance Improvement Plan. Analysis of Completion of Objectives (PIP) dated 28 August 2019 which recapped the discussions with the Complainant. Ms Bourke said that on 7 and 12 June 2019, the Complainant was advised that HR would be informed of his lateness pattern. The referred document was given to the Complainant after the meeting on 28 August 2019. This PIP was completed.

On 4 December 2019, the Complainant was issued his second PIP after he was late 1hr 45min. The completion date was 4 March 2020. However, as the Complainant was late again on 15 January 2020, a decision was made on 3 March 2020 to extend the PIP by four weeks until 3 April 2020.

The Complainant was late on Friday 24 April 2020. Ms Bourke said that after two hours’ lateness she called the Complainant but there was no answer. After another hour, she emailed him. The Complainant called her after four hours after the start of his shift saying that he had issues with his broadband and he could not ring her. Ms Bourke told the Complainant that the emergency working from home arrangements have just started and he had just completed his PIP. She said that he could have used a family members’ phone. The Complainant told her that he lived alone. She replied that, if it was her, she would have made every effort to contact her manager. She did not tell the Complainant to break Covid-19 restrictions. An Attendance Improvement Plan was issued to the Complainant on 28 April 2020, following a meeting with Ms Bourke. The completion date was set for 9 June 2020.

Ms Bourke said that she referred the matter to HR on the basis that the Complainant did not follow policy. At the time no disciplinary action would be taken due to the pandemic but a further PIP was issued which was to conclude on 1 July 2021.

Regarding the Complainant’s assertion that he was targeted because he reported malpractice, Ms Bourke said that the Respondent has a very much open-door policy, any malpractice should be reported. The Complainant made the Respondent aware of malpractice, it was investigated and an action was taken. However, this was not a subject for discussion at 1:1 PIP meetings. The Complainant was told and assured that the matter had been addressed and appropriate disciplinary action was taken against the employees in question. The Complainant kept raising the matter in his PIP meetings. He kept saying that he had new information. On 16 April 2021 Ms Bourke asked him to send it to her but he said he would not bother.

Ms Bourke said that a PIP was issued on 2 April 2021 and a review took place on 7 April 2021. She said that the Complainant did not behave in an appropriate manner . The Complainant was given first written warning at the meeting.

With regards to the Complainant’s assertion that the Respondent furnished altered documents, Ms Bourke said that the documents are automatically edited in a new tab, so all edits are seen.

Ms Bourke said that the Complainant’s PIP stated clearly that there he was to ensure that were no further instances of uncertified absences.

Ms Bourke said that, as there were further absences, the Complainant was issued with a final written warning at a meeting on 27 April 2021.

In cross-examination, Ms Bourke said that the documents regarding any meetings and PIP would be emailed to the Complainant, they are also on shared file on the intranet. Ms Bourke said that there is no signed copy.

Regarding the meeting in September 2019, Ms Bourke said that there was handover from one manager to another, the PIP was issued, and the Complainant was not happy. She met with him to confirm that the PIP stood and they needed to move on.

It was put to Ms Bourke that the Respondent asserts that the meeting in August 2019 was only PIP related but it was about the alleged sexual harassment claim.

The Complainant asked Ms Bourke how she addressed his concerns raised on 12 March 2020. Ms Bourke said that they discussed  an option of moving teams, she recalled verbally telling the Complainant about this option.

Ms Bourke said that her meeting with HR was a standard process. She clarified that no minutes of her meeting with HR were kept.

Ms Bourke said that while PIP and AIP terms are used interchangeably sometimes, AIP focuses specifically on attendance, PIP on performance and attendance.

Ms Bourke said that the Complainant was given an opportunity to explain his lateness.

It was put to Ms Bourke that the Complainant had no PIPs until he supported a colleague in an alleged sexual harassment claim. Ms Bourke said that there was no claim, no complaint.

Regarding the meeting on 16 April 2021 when the first written warning was issued, Ms Bourke confirmed that the Complainant was not advised that he had right to have someone with him.

Ms Bourke said that while the Complainant was claiming a technical issue with logging in, he did not complete the relevant form required to report such lateness. She also clarified that when an employee is on PIP, all absences need to be certified, it is outlined in the PIP.

Regarding the meeting on 27 April 2021, Ms Bourke confirmed that there were no witnesses, the Complainant had no representative. She said that her letter of the same date explained the details of the failed PIP and outlined the appeal process.

The Complainant put it to Ms Bourke that he was called ‘unprofessional’ because he kept reporting bad practices. Ms Bourke said that he did report bad practices, it was investigated and an action was taken. She could not share the details with him. She said that reporting is encouraged but the Complainant repeatedly referred to the same occurrences. PIP meeting was not appropriate to go over it again. Ms Bourke said that she told the Complainant that he could share fresh examples of bad practices but not at a PIP meeting.

Ms Bourke confirmed that a calendar invite would be sent to the Complainant a couple of days in advance.

Regarding the extension of PIP, Ms Bourke said that Ms Holohan returned from leave in February and her view was that it would not be fair to start a new PIP.

Ms Bourke said that the notes of meetings were not shared with the Complainant.

Summary of direct evidence and cross-examination of Ms Claire Porter, Senior Comm Ops Manager

Ms Porter confirmed that she was asked to conduct the appeal of the final written warning, which she overturned.

In cross-examination, Ms Porter said that she was appointed by Ms Holohan, HR Manager. Ms Porter said that the Respondent reached out to the Complainant to arrange a meeting but he was unable to attend. On the basis of the information she had, Ms Porter granted the Complainant’s appeal. Ms Porter said that there were some concerns that needed to be addressed. She clarified that she did not recommend a sanction, she did not confirm any unfairness or bullying. She recommended a fresh process. Any concerns the Complainant had, he could raise at the fresh process. Her role was limited. She added that there is a process in place for bullying complaints.

Summary of direct evidence and cross-examination of Ms Marina, HR Business Partner (via video link)

Ms Marina said that she stepped in as Ms Holohan was going on leave in August 2021. She confirmed that she forwarded the occupational health report to the Complainant. She then wrote to him on 28 August 2021 inviting the Complainant to a video call to address the appeal of the first written warning, the Complainant alleged failure to meet expectations set out in PIP of 16 April 2021, and the Complainant’s non-compliance with the Respondent’s sick leave policy.

Ms Marina said that the Complainant replied on 31 August 2021 saying that the process was unfair, that he would prefer a separate process, that he was unfit for work. He attached a medical cert for the period from 31 August to 21 September 2021.

Ms Marina said that the Complainant did not attend the hearing on 1 September 2022 and did not provide his grounds for appeal.

On 15 September 2021, Ms Marina emailed the Complainant again and rescheduled the hearing for 22 September 2021.  The Complainant, again engaged in an exchange of emails. She forwarded the occupational health report stating that the Complainant was fit to engage with the Respondent regarding work related matters and in disciplinary procedures. Ms Marina, again, rescheduled the hearing for 22 October 2021. Ms Marina replied to the Complainant’s subsequent email on 20 October 2021 and that was the end of her involvement.

Ms Marina said that the Complainant wrote to her on 4 November 2021 after he had received the outcome letter on 28 October 2021 from Ms Rowney, Community Operations Manager. He raised a number of grievances. Ms Marina wrote to him on 10 November 2021 inviting him to an investigation meeting to be held on 12 November 2021 by Ms Roan, Senior Employee Relations Partner.  Ms Marina said that the Complainant did not engage in the grievance process. It was rescheduled for 25 November 2021. The Complainant attended the meeting. Ms Roan issued the outcome on 16 December 2021. She did not uphold the grievances. The Complainant was given an opportunity to appeal the outcome and availed of same.

Ms Marina said that separately, on 26 January 2022 the Complainant was invited to a formal investigation meeting regarding his absence certification issues.

Ms Marina said that the Complainant did not raise any issues with her involvement in the process.

In cross-examination, the Complainant asked Ms Marina why she ‘secretly’ bcc’d Ms Holohan in her emails. She replied that Ms Holohan is the HR lead, it is appropriate that the person with Irish knowledge is kept involved. She said that she would contact HR when she needed guidance. She said that she wanted Ms Holohan to be kept in the loop when she was back from her leave.

The Complainant put it to Ms Marina that he did not send any documents as she should have all of them, she should have known that the process was not fair. He should not have been requested to submit grounds for his appeal.

Ms Marina clarified that in her email of 15 September 2021, she advised the Complainant that his email with the subject line: ‘Protective Disclosure’ would be addressed separately. Ms Marina said that a reply issued on 22 September 2022 advising the Complainant to raise a grievance.

Summary of direct evidence and cross-examination of Ms Peggy Rowney, Operations Manager

Ms Rowney conducted the disciplinary hearing on 22 October 2021, which the Complainant failed to attend. She said that she had to make a decision in the Complainant’s absence. The Complainant did not submit his grounds of appeal of the first written warning.

Ms Rowney aid that she looked at the absences, there were three with no certificate. As the Complainant had a live warning on file, she decided to issue a final written warning.

In cross-examination, Ms Rowney said that her job was only to address PIP2. She looked at how the performance expectations were dealt with.

It was put to Ms Rowney that absences on 16, 21 and 24 April came before PIP2 was given to the Complainant so he did know that ‘any’ absences needed to be certified. Ms Rowney said that the Complainant did not give any ground for appeal, he did not raise any issue with ‘any’.

Summary of direct evidence and cross-examination of Ms Jennifer Clancy, Operations Manager

Ms Clancy was appointed to conduct a disciplinary hearing regarding the Complainant’s absences. She said that Ms Kelly conducted the investigation. Ms Clancy said that the Complainant did not engage.

Ms Clancy said that the medical certificate dated 17 June 2021 was delivered 9 days late, and there was no certificate for 3 and 4 August 2021. The Complainant put nothing forward for her to consider, no certs, no mitigating factor. She felt that dismissal was the appropriate sanction.

In cross-examination, Ms Clancy disputed that she agreed with what Ms Kelly said. She said she reviewed the matter and made a decision.

It was put to Ms Clancy that the Complainant did not breach the warning of 28 October 2021. From then on, all absences were certified. Ms Marina said in her letter of 28 August 2021 that a fresh investigation would be launched regarding the absences from 7 June, and 3-4 August 2021. The Complainant asked Ms Clancy if there were any uncertified absences after the date of the warning issued by Ms Rowan. Ms Clancy said that she was not aware.

Ms Clancy said that had the Complainant turned up, she would have taken it into account.

Summary of the Complainant’s written submission received on 3 April 2023

The Complainant was absent on long term sick leave from 24 March 2021 until 8 March 2022. The Complainant did not breach the terms of his employment contract. All the Complainant’s days of absence while on the sick leave were medically certified and the Complainant provided all the certs. The Complainant was communicative regarding the absences.

Throughout his tenure the Complainant was enthusiastic, professional and supportive. In March 2017, the Complainant was chosen to set up a new office in Egypt. In December 2017, the Complainant was chosen to be on the Policy and Adjudication team. Six employees were selected to be the first team for the specific role of termination of Uber drivers from the Respondent’s application. The Complainant was awarded Agent of Q1 on 14 April 2021.

The Respondent terminated the Complainant’s employment due to two medical certificates being late. However, the Complainant submits that the Respondent put focus on the medical certificates as it did not appreciate the Complainant’s multiple reports of malpractice, his report against the management, the protected disclosure and the data request he submitted. Management did not like how the Complainant was highlighting certain issues.

The Complainant asserts that the narrative of him having issues relating to his behaviour and medical certificates was constructed and made into an issue. Terminating the Complainant’s employment, an employee of nearly 6 years, because of two medical certificates ‘being late’ was extreme, it was wrong and unfair.

The Complainant went through multiple unfair disciplinary processes. He asserts that false statements and altered documents have been used against him to unfairly dismiss him. 

The Complainant submits that on 28 August 2019, he acted as a witness for a female colleague who had been allegedly sexually assaulted by another employee. The Complainant submits that HR now denies the Complainant’s involvement. The Respondent now says that the meeting was in relation to the Performance Improvement Plan (‘PIP’). The calendar invitation to the meeting sent to the Complainant did not state that it was a PIP meeting. It also shows manager, Bryan McCarthy in attendance. An email exchange with the manager after the meeting shows that the meeting was not in relation to PIP. The Complainant submits that the meeting was a prep meeting before the Complainant’s witness meeting with HR the following day on 29 August 2019. The Complainant met with Ms Shaughnessy of HR. The Complainant exhibited his minutes of the meeting. The Complainant submits that he was advised that HR would follow up on his witness statement. The calendar invite to that meeting does not show that it was a PIP meeting.  Two further meetings regarding the incident took place. The Complainant asserts that multiple meetings in the space of a week with multiple managers and HR just for a PIP do not happen.

The follow up meeting then took place with manager Catherine Bourke and HR rep Alison Shaughnessy on 6 September 2019 . This was the last meeting regarding the sexual harassment incident. The Complainant was told to keep his head down and move on as the issue was handled. The Complainant was shocked with how such a serious incident was swiftly handled. The Complainant felt nothing was done at all by management. The Manager, Ms Burke told the Complainant if he didn’t move on, he would be disciplined. From this day on, the Complainant was under constant watch and placed on a string of Performance Improvement Plans.

On 13 September 2019, the Complainant was sent an invite to a meeting with team leader Ms Daly (the invite is the only one that states ‘PIP’). At the meeting the Complainant was told that the PIP active since 31 July 2019 will remain active for 3 months. The Complainant asked the team leader why all of his clock-ins for the last year were suddenly investigated and why was management disregarding his previous three years’ tenure. The Complainant was told that the review was applied to all employees.

The Complainant accepted the process and signed the PIP form. He advised his team leader that he was placed on a three-month PIP with over a month of the plan already completed. The Complainant knew that the PIP was issued because of his disagreement regarding the handling of the incident that he was involved as a witness supporting his colleague.

The Complainant is not denying that he was put on multiple PIPs but claims that the meetings on 28 August 2019, 29 August 2019 and 6 September 2019 were in relation to the Complainant supporting his work colleague. The Complainant submits that the record of the meeting of 28 August 2019 was changed.

The Complainant submits that his telephone text communication with the work colleague makes clear reference to the incident in question. The Complainant submits that he did not want to refer to this matter at the WRC out of respect for his former work colleague. However, in light of the false statements and altered records denying his involvement and supporting his teammate, the Complainant believed that it was only right to provide evidence proving his involvement as a witness, proving that false statements were made against him and that records were altered to tarnish his name / performance contributing to his dismissal.

The Complainant submits that in December 2019 he was put on the second PIP which was overseen by a named HR representative. The Complainant submits that he emailed the representative to contest the PIP but received no reply as the representative had left the Respondent organisation.

The Complainant submits that on 28 April 2020, his manager placed him on an Attendance Improvement Plan (‘AIP’). The Complainant asserts that it was due to a technical error, an issue beyond his control that caused him to log in late to work on 24 April 2020.

The Complainant submits that even though his last year clock-ins were previously investigated and he successfully completed PIP, his manager used the same clock ins for this new AIP. The Complainant asserts that his manager also advised him to break Covid-19 restrictions to contact work.

On 6 May 2020, the Complainant emailed HR to report bullying and unprofessionalism. HR representative, Ms Holohan replied to him that she had ‘skimmed over’ his report and that she would get back to him. The Complainant submits that there was no further contact or an investigation regarding his bullying complaint.

The Complainant submits that an internal hearing took place regarding the AIP. Ms Peggy Rowney and Ms Jennifer Clancy met with the Complaint on 29 May 2020 to gain his perspective and on 3 June 2020 they overturned the decision to issue the Complainant with the AIP.

The Complainant submits that blaming someone for an issue beyond their control is an example of bullying as stated in the Respondent’s Irish Annex. However, the Respondent completely overlooked the conduct of management and the Complainant reporting bullying. No support was shown to the Complainant and no investigation took place.

In the summer of 2020, the Respondent informed its employees of forthcoming redundancies. Selection was to be based on performance. The Limerick office was to reduce staff by 30%. The Complainant was not selected for redundancy.

The Complainant submits that between August 2020 and August 2021 he made multiple reports of malpractice. The Complainant submits that the filter that he used for his work was manipulated by another employee. This behaviour was referred to as “gaming” or “cherry picking”. The Complainant submits that on 7 August 2020, he had a meeting with his team leader, Ms Ryan about this impacting on his work. He was advised that the matter was being handled. However, the chat log shows that even after the team leader had addressed the issue, the filter was still manipulated. On 15 September 2020, the Site Lead emailed all staff about the malpractice that the Complainant had reported which was continuing.

On 13 October 2020, the Complainant was told by his team leader Ms Ryan that an employee going out of their way to report another employee for malpractice may be seen as singling out / targeting, so the Complainant was to stop. What went from being ‘very serious and 100% being dealt with’ on 7 August 2020 was now switched to blaming the Complainant for reporting it. Instead of resolving the matter, management told the Complainant to stop noticing it.

On 16 December 2020, the Complainant attended a meeting with his team leader, Ms Ryan and with his manager Ms Burke. He was told not to mention the alleged malpractice again. The issue was now the Complainant’s behaviour. The Respondent did not like that the Complainant reported the alleged malpractice repeatedly for five months, the Complainant was to keep quiet.

The Complainant submits that, after handling a few difficult calls, one being from a suicidal driver, the Complainant took two weeks sick leave from 5 March to 19 March 2021.

On 2 April 2021, the Complainant’s manager, Ms O’Donoghue requested a ‘catch up’ chat with the Complainant. The Complainant was asked about his health. He was then issued with a PIP for ‘behaviour’ and ‘lateness’’. The Complainant submits that he never received any PIP documents and the calendar invite showed a ‘catch up’.

The Complainant submits that he was shocked. Ms O’Donohue was not able to provide any clarification and directed the Complainant to his team leader and manager.

On 7 April 2021, the Complainant had a meeting with his team leader Ms Ryan. The Complainant submits that he tried to advise Ms Ryan that it was wrong to blame him for a technical issue. The Complainant highlighted that the malpractice started again and that it was impacting his work. The Complainant submits that his team leader Ms Ryan requested evidence of malpractice. This request for the Complainant to gather evidence contradicts the very same team leader’s stance on gathering evidence from October 2020.

The Complainant and his teammates were in agreement that management had done nothing to address the ongoing malpractice impacting their work. The malpractice continued while the Complainant was on long term sick leave. An email from the newly appointed DACT team leader on 15 November 2021 shows him highlighting the very same malpractice Site Lead warned all employees about in September 2020. The very same malpractice the Complainant was highlighting for the past year. But instead, the Complainant was placed on PIPs, told to not mention past reports, and threatened with dismissal. All because he highlighted malpractice to his team leader on 7 April 2021 and multiple times before that date.

On 16 April 2021, the Complainant’s manager Ms Bourke set up a PIP meeting with the Complainant, however this meeting ended up turning into another disciplinary meeting. The Complainant was told that he was on PIP2, and also being issued with a first written warning. Again, like PIP1 on 2 April 2021, no PIP2 was outlined and no PIP2 document was sent to the Complainant by Ms Bourke. There was no formal disciplinary process conducted and there was no witness present. The Complainant left work early on this date after the way he was treated. The Complainant’s team leader Ms Ryan approved for him to leave work early - there was no mention of a medical certificate being required by his team leader.

The Complainant was not allowed to speak about his work being impacted by malpractice during his 1:1 meetings. The PIP of 16 April 2021 clearly states the Complainant not to speak of ‘past reports’. Preventing the Complainant from highlighting malpractice that was impacting his work, disciplining him, and labelling his behaviour as a concern is not fair treatment. There were no reports, investigations, or incidents on record proving his behaviour to be an issue. The Complainant was never disciplined for his behaviour in his life. He was chosen to go to Cairo to set up the new office for the SSA Region in 2017. He survived redundancies in 2020. The Complainant was one of the longest serving employees in the company, he was a role model for new agents, he was always there to lend a hand and give his support. The Complainant was awarded Agent of Q1 on 14 April 2021 (while on a PIP). His peers voted for him, the majority of the department recognised his attitude and work ethic.

On 23 April 2021 the Complainant had a meeting with his team leader Ms Ryan. In this meeting the Complainant again tried to explain to his team leader that he should not be blamed for a technical issue, as was confirmed previous year when overturning the AIP (and as stated in the employee handbook). The Complainant was being blamed for a technical issue again. His team leader also demanded a medical certificate for when the Complainant logged off work early on 16 April 2021 - this was out of the blue as employees always just worked back the hours if they logged off early.  After the meeting, the Complainant found out about the PIP conditions regarding absence and a medical certificate being required via a screenshot from his team leader. It is clear from the Complainant’s message to his team leader that it was the first time he saw this rule that was set for the PIP. Sending a screenshot of the Complainant’s PIP is not a professional process.

The Complainant worked 17 and 18 and 21 April 2021 without any team leader or manager requesting a medical certificate. His team leader approved him to log off work on 16 April 2021 without mentioning a medical certificate being required. But a week later on 23 April 2021, the Complainant was told that a medical certificate was required and it had to be submitted within 3 days of absence.

The Complainant submits that the Respondent has furnished a document titled - ’2nd PIP - 1st Review Meeting’. He claims that this document is not the original document and has been altered. The Complainant exhibited a document he submitted was the original document that was sent to him by HR rep Ms Marina on 1 December 2021.

He asserted that the last sentence on the Respondent’s document has been changed to say the Complainant’s team leader advised him that he needed to submit a medical certificate within 2 days. The original document sent to the Complainant states his team leader advised him of 3 days.

On 27 April 2021 the Complainant’s manager Ms Bourke set up a new PIP meeting with the Complainant, however this again ended up turning into a disciplinary meeting. The Complainant was issued with a final written warning and was told that he was on PIP3 because he never handed in a medical certificate within 48 hours. Again, no PIP was outlined to the Complainant and no PIP3 document was sent to him. There was no formal disciplinary process conducted and there was no witness present.

The Respondent stated in September 2021 that PIP3 never existed, but the Respondent sent a letter to the Complainant on 27 April 2021 stating that he was commencing a new PIP (PIP3). Still to this day no document for PIP3 27 April 2021 has been furnished to the Complainant despite the letter for 27 April 2021 from Ms Burke confirming the commencement of the PIP. Also, no PIP document has a strict rule stating that medical certificates must be submitted within a certain deadline, and the Complainant’s employment contract does not have such a strict rule either. The Complainant was being treated unfairly.

On 16 June 2021, a manager Ms Porter, confirmed that the Complainant was treated unfairly and overturned the final written warning that was issued to him on 27 April 2021.

On 17 June 2021, HR rep Ms Holohan sent a letter to the Complainant accusing him of disregarding company policy for not handing in a medical certificate from the start of June 2021. This is incorrect, the Complainant did submit a medical certificate to his manager Ms Bourke via email on 28 May 2021. The Complainant sent follow up messages to the manager and his team leader to advise that he had sent the medical certificate.

On 24 June 2021 HR rep Ms Holohan emailed the Complainant stating that he was uncertified from 24 May 2021 until 17 June 2021. This is incorrect. This period of absence is covered by two medical certificates.

It is also claimed by the Respondent that it was advised to the Complainant by his team leader that a medical certificate was required when he left work early on 16 April 2021. This is also incorrect as his team leader approving him to leave work early on 16 April 2021. There was no mention of a medical certificate being required. Also, never before was a medical certificate required for leaving work early, it was standard practice to just work back the hours, as evidence from December 2020 shows.

On 2 July 2021, Ms Holohan sent a letter to the Complainant again highlighting the unaccounted medical certificate for the start of June. HR were now formally addressing the issue as it was deemed ’very serious to have 2 weeks of uncertified absence’. The Complainant did not have 2 weeks uncertified absence. As of July 2021, all the Complainant’s days of absence from 24 May to 2 July 2021 were medically certified.

The Respondent failed to address what happened to the Complainant, nothing was done to investigate how an employee of nearly 6 years was suddenly on long term sick leave.

On 4 August 2021 the Respondent arranged for the Complainant to see an occupational health specialist while on long term sick leave. The meeting was set for 11 August 2021 with Medmark.

In a report of 11 August Medmark advised the Respondent to discuss unresolved work matters for the benefit of the Complainant’s health. The Respondent took this as approval to proceed with disciplinary action. HR sent the Complainant multiple invites to a disciplinary process while he was on long term sick leave.

The Complainant highlighted to the Respondent that the Medmark report of 11 August 2021 does not state approval for disciplinary action. The Complainant asked the Respondent how a disciplinary meeting would benefit his health and enable his safe return to work. The Respondent refused to advise how a disciplinary meeting was supporting the Complainant’s health. The Complainant’s own doctor couldn't understand how a disciplinary process was supporting or benefiting the Complainant’s health considering his illness. The medical report from the Complainant’s doctor clearly highlighted the state of his health. The Complainant was certified unfit to work and was suffering from the unfair treatment he underwent. He was put through an unfair process and wrongfully disciplined. It was confirmed by two medical professionals that the Complainant’s health wasn't well and support was required. There was no effort to support the Complainant’s health and wellbeing, instead the Respondent insisted on disciplinary action against the Complainant.

On 6 October 2021 the Respondent arranged a second meeting with Medmark for the Complainant. The Complainant raised his eyebrows to such a swift second meeting with Medmark after the first meeting. His health was not going to miraculously improve in the space of a few weeks, especially after receiving multiple invites to a disciplinary meeting. But the second Medmark report came back the same as the first report - apart from specifically stating approval for disciplinary action.

The Complainant was supposed to be assessed on health grounds, not to return just so the second report could specifically state approval for disciplinary action.

It was confirmed that the Complainant was suffering from stress and depression and he was prescribed antidepressants. But a disciplinary meeting was seen as the best course of action while he was absent on long term sick leave.

The Complainant had requested a new HR rep to oversee matters in the interest of fairness. That is why HR rep Ms Marina got involved. But HR rep Ms Holohan was not excluded from the process, as both Medmark reports were addressed to her.

The Complainant requested to have the discussions regarding the unresolved work matters / unfair treatment be separate from a disciplinary meeting, but his requests were refused by the Respondent. The Respondent felt it was best to combine talks about unresolved work matters relating to his illness into a fresh disciplinary meeting.

The Complainant declined to participate in any form of disciplinary meeting until unresolved work matters / unfair treatment that led to his absence was addressed separately, simply for his health and also for natural law and fair justice.

On 28 August 2021 HR rep Ms Marina accidentally sent a draft letter to the Complainant confirming that a manager Ms Rowney would be investigating April’s 2021 events. This draft shows that someone was instructing her what to input before sending it to the Complainant.

The Complainant had requested that the unfair process since 2 April 2021 be investigated after the final written warning on 27 April 2021 was confirmed as unfair. The investigation however never took place. Instead, Ms Rowney was to hold a re-review of the events in April 2021. This re-review was to take place in October 2021. It overlooked that the PIP on 2 April 2021 started with a catch-up chat, and it also overlooked that the meetings on 16 April and 27 April 2021 had no formal process and no witness present. Despite these, the process and the events in April 2021 were approved by Ms Rowney. The final written warning that was overturned in June 2021 by Ms Porter was now back active again.

One notable instruction to Ms Marina was to input the date for the Complainant’s August 2021 medical certificate, because he submitted it on ‘day 3’. This statement possibly connects to the altered document of 23 April 2021, where the original statement of ’3 days’ has been altered to state ’2 days’ - thus deeming the August 2021 medical certificate ’late’.

With the final written warning back active again, the Respondent now focused on the medical certificates as a new issue in order to go about dismissing the Complainant from his employment. The Respondent flagged medical certificate issues on 28 August 2021. The medical certificates being addressed were for the dates 7 June 2021 and 3 & 4 August 2021. The Complainant was not scheduled to work 4 August 2021, so this date should not be used against him. 7 June 2021 medical certificate issue was escalated due to HR error of accusing the Complainant of having two weeks of uncertified absence. The letter from the Respondent on 2 July 2021 clearly states two weeks of uncertified absence is very serious and a formal process will commence, but then on the letter on 28 August 2021 the Respondent states the matter is ‘’specifically in relation to your absence from 7 June’’.

This wrongful accusation of two weeks of uncertified absence has been completely omitted and now the only reason for commencing the formal process was because a medical certificate in June 2021 was late. All the Complainant’s absences were medically certified and he had sent the May 2021 medical certificate to his manager Ms Burke by email and informed her and his team leader that he had done so.

The Respondent also flagged that the Complainant had submitted the medical certificate for 3 August 2021 after the expiry of his previous medical certificate. The Complainant submitted his medical certificate on 5 August 2021. The Complainant was into his fourth month of long-term sick leave, the Respondent had just arranged for him to see an occupational health therapist the same week, but submitting the medical certificate on the third day was enough to proceed with an investigation leading to the termination of his employment. It didn't matter that all the Complainant’s days of absence were certified, the 3 August 2021 medical certificate was unfortunately submitted on 5 August 2021, it was late, therefore disciplinary action commencing.

Point 5 of the Ireland Annex covers Sickness and Absence Policy. The Complainant adhered to the guidelines stated in the Ireland Annex - he had submitted his August 2021 medical certificate within 3 days after the expiry of his previous medical certificate. The annex and the Complainant’s employment contract also reiterate that in times of conflict, the employment contract prevails. There is no set deadline for submitting medical certificates on the Complainant’s employment contract. It is not fair to set a specific rule for sick policy just for the Complainant to adhere to. Especially when he was advised multiple different rules. The Complainant’s team leader told him that he must submit a medical certificate within 3 days, his manager told him 2 days. HR rep Ms Holohan also wrongfully accused the Complainant of having two weeks of uncertified absence, the reason for formal process commencing and the reason for now focusing on medical certificates.

The Complainant’s days of absence were all certified. He was being treated differently and he was being treated unfairly.

The Complainant submits that a manager Ms Kelly was to oversee the disciplinary hearing for the flagged medical certificates.  The Complainant requested an external investigator to oversee a grievance meeting. This request was rejected by the Respondent. The Respondent appointed Employee Relations Rep Ms Roan to conduct the grievance investigation on 25 November 2021.

The finalised grievance report by Ms Roan contains a statement that accused the Complainant of saying that manager Ms Porter was bullying him and that his report was not addressed. This is incorrect, the Complainant did not say this about Ms Porter. The Complainant raised an issue with his manager Ms Bourke who the Complainant reported for bullying in May 2020.

The finalised grievance report also contained incorrect statements by Ms Bourke and team leader Ms Daly regarding the Complainant’s involvement as a witness in a sexual harassment incident in support of his colleague. The Complainant advised the Employee Relations Rep Ms Roan that records of the meeting that he attended as a witness in support of a colleague on 28 August 2019 were falsified by management to say the meeting was regarding a PIP. Management denies the Complainant’s involvement to try and cover up this behaviour. The Complainant asserted that for this reason an external investigator should have been appointed.

The disciplinary meeting to take place in February 2022 was to determine if the Complainant was to face disciplinary action for the flagged medical certificates from the previous year in 2021. The Respondent has provided minutes of a meeting on 16 April 2021. It is evident that both the Complainant and his manager Ms Burke talked about this incident he acted as a witness in.

The calendar invite for that meeting on 6 September 2019 shows Ms Burke’s attendance at the very meeting with HR rep and the Complainant. For Ms Burke to inform Ms Roan that the Complainant did not act as a witness for his colleague, and try to cover up the changing of records, was extremely deceitful. Such actions contributed to the dismissal of the Complainant.

The Complainant submits that right after the Complainant’s grievance meeting with Ms Roan, HR rep Ms Holohan sent out an email to all employees advising that they have updated the Irish Annex for the global employee handbook to now include links for disciplinary policy / harassment bullying.

On 4 February 2022, Ms Kelly held a meeting to oversee the late medical certificate issues for June 2021 and August 2021. This was related to a letter sent to the Complainant on 28 August 2021. It was deemed that it was necessary to proceed with a new disciplinary process for the medical certificates flagged. The Complainant was an employee of nearly 6 years, on long term sick leave for over 10 months. For the Respondent to flag a medical certificate from 7 June 2021, and for the Respondent to now focus on the medical certificate being late as the reason to commence formal process is extreme. The Respondent completely brushed over the error of accusing the Complainant of two weeks uncertified absence from 24 May 2021, the very reason for a formal process commencing. Instead, the issue now was the seriousness of a medical certificate from ten months ago being submitted a few days into the Complainant's absence. The Complainant was also wrongfully blamed for absence on 4 August 2021. He was not scheduled to work this day so it is unfair to use this date against him. A fresh disciplinary action was approved on the basis of the lateness of the August 2021 medical certificate.

Ms Kelly gave approval for disciplinary action to commence against the Complainant. This would lead to his dismissal.

Protected Disclosure

The Complainant submits that on 10 September 2021, he submitted a protected disclosure to the Respondent via email and post. The Complainant was heavily impacted by his treatment by the Respondent. In writing up a protected disclosure he saw a way of briefly running over everything in a nutshell and getting matters off his chest. He was in fear he was going to lose his job because of how he was being treated by management and HR. In his protected disclosure, the Complainant advised that;

·        He was silenced from mentioning ongoing malpractice;

·        He was wrongfully disciplined multiple times by management and HR (blamed for reasons beyond his control);

·        He was instructed to break Covid-19 restrictions by management;

·        Bullying report was not handled by HR;

·        Previous wrongful actions taken against the Complainant during his tenure;

·        Job role - heartbreaking telephone calls that at times turn to suicidal calls, seeing photos of dead Uber Drivers, and just the general brief overview of the toughness about the job role itself.

The Complainant was advised that he would be given the opportunity to elaborate on the malpractice stated within his protected disclosure at the WRC hearing.

The Complainant did not include the fact the Respondent changed records for 28 August 2019, because he was only made aware of the altering of records to tarnish his performance after he had submitted his protected disclosure.

Termination Letter

The decision to terminate the Complainant’s employment was advised to him on 22 February 2021 via letter from Ms Clancy. In the termination letter, the Respondent focuses on the medical certificates of 7 June 2021, 3 August 2021 and 4 August 2021.

The termination letter states that the Complainant’s medical certificate dated 17 June 2021 was ‘’submitted 9 days after the expiry of his previous certificate, despite clear instructions to you to the effect that all absences must be certified.’’

The clear instruction was adhered to by the Complainant. All of the Complainant’s absences were medically certified.

The termination letter also failed to acknowledge HR’s error of the wrongful accusation of two weeks of uncertified absence against the Complainant.

The termination letter refers to the letter of 2 July 2021, but does not mention the main reason for formal process commencing, the error of accusing the Complainant of having 2 weeks uncertified absence. The letter states;

‘Your most recent sickness absence commenced on 24 May 2021. However, you only sent in a medical certificate on 17 June, which certificate covers the period 7 June- 5 July. This certificate was provided extremely late by any standard, and does not cover your entire period of absence; two weeks of which remain uncertified. This is very serious, Patrick. And we have to address this formally.’

The Complainant had submitted his medical certificate. This error by HR was the main reason for the formal process commencing against him.

The Complainant was advised of his dismissal via email on 22 February 2022. The Complainant advised that he wanted to appeal the decision to terminate his employment, but any appeal to be heard must be conducted by an independent chairperson. This was refused. The Complainant knew once false statements came back from his grievance hearing that nothing he said mattered. The Respondent was never going to let an independent chairperson get involved. He was dismissed from his employment and any appeal to be set was to be chaired by the Respondent. There was no fairness to the process.

Ireland Annex for Respondent

The Irish Annex was never outlined to employees at all, it was always a case of referring to the employee handbook. For raising questions / reporting incidents etc., it was straight forward, employees could report verbally or in written form. The Irish Annex was updated in November 2021. This Annex was updated right after the meeting the Complainant had with Ms Roan.

The updated Annex does cover:

2.1. The definition of bullying in the Ireland Annex covers multiple examples of bullying behaviour that the Complainant was exposed to:

·        Blaming a person for things beyond their control (AIP May 2020)

·        Intimidation and threats in general (September 2019 Meeting, AIP May 2020, 16 December 2020 Meeting , 16 April 2021 PIP2 / First Written Warning Meeting , 27 April 2021 PIP3 / Final Written Warning Meeting

All examples stated above happened to the Complainant. All incidents were conducted by the same manager the Complainant had reported for bullying / unprofessionalism in May 2020.

The procedure regarding PIP process as stated in the Annex was not followed. The Complainant was not given prior notification of the PIPs or a meeting to explain his position. The 2 April 2021 PIP was sprung on the Complainant after being called to a catch-up chat.

First written warning stated in the Ireland Annex is issued after ’verbal warning’. The Complainant never received a verbal warning and an unfair process was conducted. The process as stated in the Annex was not followed. Also, no witness was present for any meeting in April 2021.

Incorrect Wages

The Respondent deducted sick pay from the Complainant’s accrued holidays on his March 2022 payslip. There is a difference in the two payslips. The Complainant’s February 2022 payslip has ‘salary’ stated on it, and the deduction of ‘sick hours’ can be seen. This is correct, the Complainant was absent so the sick hours are deducted from the salary hours. However, the Complainant’s March 2022 payslip does not have ‘salary’ stated on it. But it does have the deduction of ’sick hours’. The deduction of sick hours from owed holidays on the Complainant’s March 2022 payslip is incorrect. The sick hours should be deducted from ’salary’ not ’holidays’. The ‘holidays’ on the March 2022 payslip should not have been deducted as they were owed to the Complainant. The Complainant’s accrued holidays should not have been impacted by sick pay on his final payslip. The Complainant has still not received money owed and the error on his payslip was never amended. Instead, the Complainant was told that he owes money to the Respondent.

The Respondent claims the Complainant owes money after deductions were complete - but they are not requesting the money owed to them.

Loss of Earnings

The Complainant was on illness benefit from 24 May 2021 until his termination on 8 March 2022 (and until his return to employment on 14 November 2022). The Complainant was in receipt of €203 per week, going from approximately €2,000 per month wages to approximately €800 per month with social welfare. He experienced an estimated loss in earnings of approximately €20,000 euro for 18 months of being unable to work.

The Complainant returned to employment on 14 November 2022 (a drop in salary of €4,000). He received no support financially from the Respondent. The Respondent does not pay employees on sick leave. The Complainant has also been left to cover medical expenses in excess of €1,000 since his absence. An estimation of the Complainant’s full loss in earnings, from beginning of long-term sick leave on 24 May 2021 until his return to employment on 14 November 2022 would be approximately €25,000 (not including whatever value one could put on the unfair treatment and false statements that contributed to his illness).

Returning to employment

The Complainant had never any doubts about being able to get work again, he has years of experience in customer care, he has an honours degree and an honours postgraduate higher diploma.

However, the Complainant was fearful of stepping back into an office environment and falling victim to similar harsh treatment again. After regular visits with his doctor, it was advised that a few sessions with a psychologist would be beneficial, which he continues.

The Complainant exhibited his psychologist’s letter of support.

The Complainant applied for job roles in companies such like Regeneron and Capita. He made contact with CPL Recruitment for a role with a pharmaceutical company. It was also extremely positive to know that his previous employer Cook Medical was open to having the Complainant return.

The Complainant attended his first interview on 27 September 2022. However, he was unsuccessful. He secured new employment on 14 November 2022.

Conclusion

The Complainant was unfairly  dismissed. The Complainant was put through unfair and unprofessional processes which resulted in him being wrongfully disciplined multiple times. His name and performance have been tarnished by altered documents and false statements used against him. Not only were all the Complainant’s absences medically certified, but no records or reports for behavioural issues against the Complainant exist. In all his near 6 years of tenure, never was his behaviour highlighted in a negative light.

The evidence provided by the Complainant covers all dates and events relevant to the case. The evidence submitted leaves no stone unturned. The Complainant did not omit any meetings that took place. The Complainant has provided an honest account on everything that happened. The Complainant wants fairness, his name and credibility restored. The Complainant’s whole life was turned upside down. The Complainant was one of the longest serving employees in the company. What happened to him is still devastating to think of. Being dismissed is tough enough to deal with, but when false statements and falsified documents are used in order to secure the termination, it makes everything so much worse. It literally made the Complainant feel worthless. The Complainant has not recovered, far from it. It's something that will live with him forever. What happened to the Complainant was unfair and unethical. The Complainant was unfairly dismissed.

The Complainant furnished another written submission on 1 November 2023.

In addition to addressing the matters outlined above, the Complainant provided his legal argument as follows.

In the case of An Employee v A Garage ADJ-00037740, the WRC outlined the importance of the general basic rules of fairness and natural justice that employers should adhere to. The WRC referred to the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000). The WRC found that the failure to follow fair procedures rendered the process unfair, and the employee succeeded in the case. The WRC found that the process followed did not follow fair procedures and noted that the general basic rules of fairness and natural justice apply to dismissal.

This was exactly what happened to the Complainant. The fact that the disciplinary hearings on 16 and 27 April 2021 had no witness present and the Complainant was issued with two written warnings, proves that fair procedure was not followed by the Respondent. Also, at the disciplinary hearing on 28 October 2021 the Complainant was issued with the final written warning and he was denied his right to appeal the warning. That is not in line with natural justice and fair procedures. The Complainant did not breach any terms of the final warning issued in October 2022, but he was still dismissed in March 2023. Fair procedures and natural justice were not followed by the Respondent.

In the case of A Tanning Salon Worker v A Tanning Salon ADJ-00013887, the WRC again outlined the importance of the general basic rules of fairness and natural justice that employers should adhere to. The WRC found that the respondent failed to afford the complainant proper procedures in dismissing her. She was not advised before the meeting held with of her of the purpose of the meeting nor of her right to be represented and therefore was not in a position to respond properly to the allegations. She did not receive an impartial hearing as is evidenced by the fact that the manager had a pre-prepared letter of dismissal ready to give her and had clearly made up her mind on the issue before the meeting. The dismissal was therefore unfair. Again, similarly, the Complainant, was also not given the opportunity to avail of the right to be represented during disciplinary procedures on 16 April 2021 and 27 April 2021 and on 28 October 2021 he was denied the right to an appeal. That was not in adherence to the Code of Practice on Disciplinary Procedures.

In the case Supermarket Manager v Supermarket ADJ-00015765 the WRC found that the Supermarket Manager was not afforded any of the procedures set out under the Code. The WRC found that the dismissal of the employee was substantively and procedurally unfair and the sanction of dismissal was disproportionate. The employer showed no regard to the principles of fair procedures and natural justice. The Complainant in this case has outlined multiple instances where the Respondent  did not follow fair procedures and natural justice when orchestrating his dismissal.

In his written submission of 1 November 2023, the Complainant made references to the Employment Equality Act 1998, the Safety, Health and Welfare at Work Act 2005, S.I. No. 674/2020 - Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020, and the Protected Disclosures Act 2014. The Complainant confirmed that he had not referred any claims pursuant to or relevant to these pieces of legislation.

The Complainant furnished supplemental booklets of evidence on 14 November 2023, 2 January 2024 and 27 February 2024. 

Summary of direct evidence and cross-examination of the Complainant

The Complainant asserted that a lot of records submitted by the Respondent were ‘switched’ or ‘altered’. He said that all  the PIPs started in August 2019, PIP after PIP.

The Complainant said that the lateness on 24 April 2020 was due to a technical issue. He said that the PIP of 16 April 2020 mentions no instances of lateness. He said that then the Respondent turned it into a medical cert issue. The Complainant said that he only received his PIP on 23 April so on 16 April, he was not aware of it. He said that PIP documents were not sent to him.

The Complainant said that the first written warning was issued but the process was not fair, there was no witness. It was the same with the final written warning. He said that he broke down and ended the meeting and nobody checked on him.

The Complainant said that he asked for a new HR person and Ms Marina was picked but she still bcc’d Ms Holohan.

The Complainant said that Ms Rowney concentrated only on the failure of PIP not on the conduct of PIP itself.

The Complainant said that the Respondent purposively left out from the investigation a 2 weeks’ cert but concentrated on late certs. The Complainant said that he has no problem saying that the June cert was late but it was only one cert that was late, every other cert was OK.

The Complainant said that it was not until February 2022 that the Respondent turned around and said that the June cert was late.

The Complainant said that the termination letter said that all absences had to be certified and they were.

The Complainant said that he should have kept his mouth shut but he highlighted bad practices.

The Complainant said that he was 6 years with the Respondent, he was picked to set up the office. All his colleagues picked him for the employee of the quarter in Q1 of 2021.

Regarding his loss, the Complainant said that he started looking for a job in July 2022 and he commenced new employment in November 2022. He said that between May 2021 and November 2022 he was on illness benefit. The Complaint asserted that his illness was work-related stress.

The Complainant said that he is currently paid some €2,000 less per annum than he was paid by the Respondent.

In cross-examination, the Complainant said that it was ‘pretty normal’ to have 17 instances of lateness in the period from December 2019 to April 2020. He agreed that an employer would be entitled to address them.

The Complainant agreed that he was bound by his contract and PIP but he qualified that it had to be done correctly.

It was put to the Complainant that from August 2019 he was aware of issues with lateness. He said that the Respondent made it an issue because of him being outspoken.

It was put to the Complainant that the Respondent has some 430 employees, what if everyone acted like the Complainant who forgot that he was supposed to be at work. The Complainant said that he was being honest. It was put to the Complainant that he was given clear guidelines in his PIP.

The Complainant disputed that at the meeting with Ms Burke on 16 April 2021 he apologised for getting heated in 1:1 meetings. He said that the notes were false, and that Ms Bourke confirmed that these were her personal notes.

The Complainant did not dispute that the Agent of the Quarter Award was a peer recognition award.

It was put to the Complainant that the Respondent accepts that he should not have been given a warning and a PIP but he did fail the PIP. It was further put to the Complainant that it would be easy to make him redundant but the Respondent chose to put him on a PIP.

The Complainant confirmed that he did not engage with Ms Rowney, he said that he was on sick leave. He said that a disciplinary process was not going to help his health. It was put to him that the occupational health report of 6 October 2021 confirmed that he was fit to engage in the process. The Complainant asserted that his medical cert said that he was unfit for work and work encompassed the disciplinary process and matters that were very stressful.  The Respondent put it to the Complainant that a specialist report stated that he was fit to engage. He was asked to provide a cert to say that he was not fit for a disciplinary process and he did not deliver one.

The Complainant confirmed that he was allowed to appeal the first warning.

It was put to the Complainant that he did not attend the appeal. The Complainant was asked why he did not send ground for appeal, arguments etc., why he did not engage via email. The Complainant said that decided that the Respondent needed to look at the facts, he did not need to send anything in addition.

The Complainant said that, as he was not fit to engage, he got a solicitor. On his advice, the Complainant raised a grievance.

It was put to the Complainant that he could have attended the meeting, he said he could not. It was put to the Complainant that he did not say that he did not attend on health ground, he said that the Respondent had it all and needed to look at the facts.

It was put to the Complainant that had the Complainant met with Ms Rowney, she would have looked at the absences, whether they happened before the warning was issued.

The Complainant confirmed that he did not follow up with Ms Porter on the allegations he made against Ms Bourke. He said that he reported it to his manager in December, but he did not follow up on Ms Holohan’s letter of 2 July 2021 advising him to make a complaint.

The Complainant accepted that one of his certs was 9 days late.

He said that he did not get any of the PIPs documentation, he was not aware of any conditions of his PIP.

The Complainant said that he was on illness benefit until November 2023 when he commenced new employment. He said that it was due to ongoing work-related stress that was caused by the treatment by the Respondent.

Questions from the Adjudication Officer

The Complainant was asked if he alleged that his unavailability for work after the dismissal was due to work-related stress. He asserted that he remained on Illness Benefit because of the Respondent’s treatment of him.

The Complainant was given an opportunity to furnish medical evidence to support his contention that the medical difficulties he suffered post-dismissal resulted from the work-related stress. No such evidence was received.

The Law

Section 1 of the Unfair Dismissals Act 1977, as amended (‘the Act’), provides the following definition of ‘dismissal’:

‘dismissal’, in relation to an employee, means—

‘(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.’

Section 6 of the Unfair Dismissals Act, 1977 in relevant parts provides as follows:

6. Unfair dismissal

(1) 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.

 (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. The Unfair Dismissals Act requires that the employer must be able to show that fair procedures were followed and that there existed substantial grounds justifying the decision to dismiss.

In The Governor and the Company of Bank of Ireland v James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: 

‘It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.’

In Bunyan v United Dominions Trust (Ireland) 1982 ILRM 404, the EAT endorsed and applied the view in the case of N .C. Watling Co Limited v Richardson 1978 IRLR 225 EAT (ICR1049) where it was stated: ‘The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether, on the evidence, before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.’  

In the case of Samuel J. Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

‘Where a question of unfair dismissal is in issue, there are certain premises 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 the 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 considering the fairness or otherwise of the dismissal, I am also obliged to consider if the sanction of dismissal was proportionate to the alleged misconduct the circumstances. The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical Services Ltd [2012] 23 E.L.R.195 that: 

‘The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?’

In Richardson v H Williams & Co. Ltd UD/17/1979 the complainant was dismissed because the respondent had been dissatisfied with his work performance. The EAT noted that the claimant was not given an opportunity to defend himself and the Tribunal applied the following principles:

‘(a)Where an employee has been given a justified warning that, unless his or her work improved in a specific area, his or her job would be in jeopardy, then it follows that such employee must be given:

(i)                a reasonable time within which to effect such improvement; and

(ii)               a reasonable work situation within which to concentrate on such defects.’

Accordingly, before a decision to terminate an employee’s employment is made, an employer is required to inform the employee of the respects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving their performance.

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (S.I. No. 146/2000) sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures.

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·        That employee grievances are fairly examined and processed;

·        That details of any allegations or complaints are put to the employee concerned;

·        That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·        That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·        That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The core tenet of the Code is that all employees are entitled to fair procedures and natural justice in all of their engagements with their employer.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where Ó Dálaigh C.J. stated that: ‘Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures’.

The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Determinations including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet, UD1294/2008. 

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited [1973] IR 388, stated that:-

‘This court in re Haughey [1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.’

The combined effect of the above requires me to consider whether or not the Respondent's decision to dismiss the Complainant was reasonable in the circumstances. It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent's position and circumstances, would have acted in the same way. This is the standard the Respondent’s actions must be judged against.

The Complainant commenced his employment on 2 August 2016.  There was no dispute that the Complainant was required to clock in/out. There was also no dispute that the Complainant’s contract outlined the procedure regarding sickness absences as follows:

‘The Employee is required to provide a medical certificate in a form satisfactory to Uber, stating the nature of the Employee’s illness and the likely duration of the absence, for all absences more than two consecutive working days. Furthermore, Uber reserves the right to request all absences on sick leave to be medically certified.’

The Respondent’s Global Employee Handbook also addresses the matter of attendance and notification of sickness or absence. It provides that:

‘Excessive absenteeism and tardiness may lead to disciplinary sanction, up to an including immediate termination of employment.’ (Standards of conduct chapter).

It separately addresses sick leave and states, inter alia that:

‘If your sick leave was not planned (for instance, if you unexpectedly get sick or for a medical emergency), give notice as soon as practical.’

‘If you repeatedly miss work without justification, the Company may take disciplinary actions.’

The Respondent’s Ireland Annex: Community Operations – Community Specialist Team – Time and Attendance Policy highlights that ‘punctuality is critical’ and addresses lateness and absences.

I note that the document entitled Sickness leave – Ireland in the Ireland Annex provides  that:

‘If you are absent from work due to Sick Leave, you must notify your Manager or Team Lead and submit your leave request as soon as possible.

You will need to provide the following with your leave requests:

1.      If you’re absent for three (3) consecutive working days or less

·        Your absence does not need to be supported (when requested via Workday) by a medical certificate, Meanwhile Uber reserves the right to request it at a later date if necessary.

2.      If you’re absent for more than three (3) consecutive working days

·        You must submit a doctor’s certificate within three (3) days of your first day of sick leave. The doctor’s certificate must confirm your inability to attend work detailing the nature of your illness/injury and period during which you are unfit to work. You should keep us informed of your state of health and likely date to return to work and must continue to provide on-going medical certificates on a weekly basis.’

The Respondent has a detailed Disciplinary Procedure in the Ireland Annex. The procedure provides for an investigation, an informal disciplinary action and a formal procedure. The Procedure states that no disciplinary action will be taken before a proper investigation has been undertaken. It states that :’Wherever possible, the investigation into an allegation of a breach of Uber’s policy will be carried out by a member of Uber’s Employee Relations Team, or another appropriate person , who is not in any way involved with the allegations which is being investigated.’

As far as the formal procedure is concerned, the document states:

‘In all cases where an employee’s standards of performance, attendance and/or conduct fall below those expected by Uber, the formal disciplinary procedure may be initiated.

In such cases, following appropriate investigation (which shall be a performance improvement plan in the case of allegations of poor performance), a disciplinary hearing will be held with the employee to put the allegation(s) to them, and to hear their responses to the issue.

The following principles will apply to a disciplinary hearing:

·        Advance notification of the requirement to attend a disciplinary hearing will be provided together with the fact that the outcome of the meeting may be disciplinary action.

·        The Employee will be given all reasonable facilities including a meeting to explain their position.

To ensure a proper presentation of an employee’s case they will be afforded the right to be represented by a consenting fellow work colleague of their choice.

…

·        The Employee will be notified of the details of the complaint against them in advance of the meeting in order to have an opportunity to prepare their responses.

·        The Employee will be provided with a copy of any supporting evidence which Uber will refer to and/or rely on at the disciplinary hearing.

·        The Employee will be afforded an opportunity to respond to any allegations/evidence at the meeting, and to present any other relevant factors including any mitigating circumstances.

·        Further meetings may be held with the Employee as necessary.

·        Conclusions will only be formed following a fair hearing where the Employee is allowed to respond to complaints and these responses are considered in given circumstances.’

There was no dispute that the Respondent became aware of the Complainant’s lateness and absences and a decision was made to address the matter formally.

The Complainant alleged that his attendance was investigated as a result of him being a witness and supporting his work colleague in her complaint regarding an alleged sexual harassment. I cannot accept this assertion as, firstly, it was not in dispute that the Complainant did not witness the incident in question. Secondly, the alleged victim had not made a complaint and no investigation took place. I accept, on the basis of the email dated 28 August 2021 from the Complainant to Mr McCarthy and the zoom call invitation exhibited by the Complainant that a of meeting took place between the Complainant, Mr McCarthy and the Complainant’s Team Lead on 28 August 2021. However, there was nothing put before me to suggest that the matter of the Complainant’s time management arose as a result of same.

Ultimately, there were concerns regarding the Complainant’s time keeping and the Respondent was entitled to address them.

There was no dispute that the Complainant was put on a number of Performance Improvement Plans (‘PIP’) from August 2019 onwards.

With regard to the first PIP, the evidence before me was that the Complainant was not made aware of the purpose of the meeting on 28 August 2019 in advance. He was also not advised of his right to have representation. The Complainant attended the meeting unaware of its purpose. The document exhibited by the Respondent, which the Complainant claimed he had not received, dated 28 August 2019 deals with absences/ lateness from 28 September 2019 until 31 July 2019. Somewhat remarkably, on 28 August 2019, the Complainant’s Team Lead put the Complainant on a PIP from 31 July 2019. The Complainant completed this PIP on 31 October 2019.

On 4 December 2019,  the Complainant was put on the second PIP by the Team Lead. It appears that, again, the Complainant was not informed of the purpose of the meeting in advance and was not afforded right to have a work colleague/representation with him. This PIP dealt with four occurrences of lateness between 2 August 2019 and 12 November 2019.

Due to further occurrence of lateness on 15 January 2020, this PIP was extended by four weeks to 3 April 2020. Both documents referred to above (which the Complainant contended he never received) provided that if sufficient improvement was not demonstrated or achieved, appropriate action may occur including disciplinary action up to and including dismissal. I note that neither of the documents was signed by either the Complainant or his manager.

On 28 April 2020, the Complainant attended another meeting, with Ms Bourke, Community Operations Manager. Again, there was nothing to suggest that the Complainant was notified in advance of the purpose of the meeting or offered representation. The meeting addressed the Complainant’s logging in late (240 minutes) on 24 April 2020. Following the meeting Ms Bourke emailed the Complainant informing him that he would be put on an Attendance Improvement Plan (‘AIP’) until 9 June 2020. This seemed to have been successfully completed.

The Complainant was put on another PIP on 2 April 2021 for three months until 1 July 2021. This PIP dealt with three instances of lateness, quality scores and 1:1 interactions. The document outlines that the Complainant was spoken to about not speaking over his Team Lead or Community Operations Manager in a 1:1 setting. The same behaviour was allegedly highlighted by his Team Leader on 20 March.

The first PIP review took place on 7 April 2021 with the Complainant’s Team Lead. The second PIP review took place on 16 April 2021 with Ms Bourke. At this meeting, Ms Bourke advised the Complainant that he had failed the current PIP (scheduled to last until 1 July 2021) and that he was to commence a new PIP as of that date. Ms Bourke further informed the Complainant that she was issuing the Complainant with a first written warning due to him allegedly being unprofessional toward his Team Lead and bringing up past incidences during the meeting on 7 April with his Team Lead. The Complainant was advised of his right to appeal the sanction. 

Another PIP, nearly, if not identical commenced on the same date, 16 April 2021. The first review was held on 23 April 2021 when the Team Lead asked the Complainant for certs for three absences on 16, 21 and 22 April 2021. The Complainant disputed that he was required to provide medical certs.

On 27 April 2021, Ms Bourke met with the Complainant and informed him that due to uncertified absences, she had deemed that he failed his PIP. Ms Burke issued the Complainant with a final written warning and, again, commenced a new PIP. In her letter of the same date, Ms Bourke advised the Complainant of his right to appeal the sanction.

On 3 May 2021, the Complainant appealed the sanction and the previous first written warning.

Having carefully considered the events up to the point of the appeal, I find the Respondent’s approach to the matter unsound. For the avoidance of doubt, I do not question the Respondent’s right to deal with the Complainant’s timekeeping and/or his behaviour. However, the process which led to the final written warning fell short of the requirements of fair procedures and the Respondent’s own disciplinary procedure. 

It seemed that the Complainant was caught unawares when called to meetings without proper notification and with no representation. Furthermore, it seems that the documents that were exhibited at the adjudication hearing up to the PIPs of 2 April and 16 April 2021 (which appear to have been shared on the internal system) were not shared with the Complainant, there were not signed by him or the Respondent and, in some cases, undated. In fact, Ms Bourke said in her evidence that these were not furnished to the Complainant. No relevant “Process history” documents were exhibited.

I accept that the PIP documents of 2 April and 16 April 2021 were shared with the Complainant. However, again, it appears that the Complainant was not given proper notice regarding the PIP meetings and was not offered the opportunity to be accompanied by a representative. The meeting on 16 April 2021 was somewhat transformed from a PIP review meeting to a disciplinary meeting at which the Complainant was simply told that he failed his PIP due to his alleged unprofessional behaviour at the previous PIP review with his Team Lead on 7 April 2021. Ms Bourke believed that the Complainant failed his PIP as a result and issued him with a first written warning. The allegation of inappropriate behaviour at the meeting of 7 April 2021 was not put properly to the Complainant. Neither was there any investigation regarding this alleged inappropriate behaviour.

Mr Des Ryan BL at para 13.72 of Redmond on Dismissal Law (3rdEd., Bloomsbury Professional, 2017) states:

“Heavy emphasis has been laid in recent case law on the duty on an employer to set out clearly allegations made against an employee from the outset, with the employer not being permitted to augment the allegations as the investigation progresses. This is because an employee is entitled to be informed at the outset of the complaint(s) being made against him or her in order to ensure he or she has a meaningful opportunity to prepare and present his or her defence.”

In Kilsaran Concrete, Kilsaran International Ltd v Vitalie Vet [2016] 27 E.L.R. 237 the Labour Court held:

“(i) It is self-evident that the rationale for the requirement that the person who is subject to a disciplinary investigation should be made fully aware of the complaint(s) against him or her is to ensure that he/she has a meaningful opportunity both to prepare and to present his/her defence to the complaint(s) (Preston v Standard Piping [1999] E.L.R. 233 refers). It is abundantly clear to the Court – and admitted by the respondent's witnesses – that the respondent's disciplinary investigation dealt with allegations that had not been formally put in writing to the complainant either at the outset of the investigation or in the course thereof. The respondent's witnesses also accepted, and the court finds, that those additional allegations were material to the decision taken to summarily dismiss the complainant and the subsequent decision taken at the appeal stage to confirm that sanction.”

It is clear in the instant case that the Respondent made a decision to issue a disciplinary sanction on the basis of an allegation that had not been formally put to the Complainant and was not investigated. This raises a question as to whether he was afforded a proper and meaningful opportunity to present his defence. I find that the Respondent did not follow its own procedure and the process applied was not in accordance with the requirements of fair procedures, due process and natural justice. 

A similar process was employed in the context of the meeting on 27 April 2021 at which the final written warning was issued. I note, however, that the final written warning was successfully appealed.

The Respondent failed to differentiate between the PIP process and the disciplinary process. In ADJ-00008538, the Adjudication Officer held that;

‘Performance management and the management of discipline are quite separate in their purpose, although in their earlier stages they each have the same objective of securing some improvement in either conduct or performance.

In practice, very similar principles apply to the operation of both in respect, for example of the need for the employee to have clarity about the process and the employer’s future expectations and it might be said that in their earlier stages they run on parallel tracks.

Where those tracks merge, however is at the point where a sanction is being considered and the more serious the sanction the higher the standard of fair procedure that is required.

There are some deficits in respect of the administration of the 2016 warnings and the twin track of performance management and discipline were fused to the complainant’s disadvantage.

It may possible to have ‘warnings’ about the need for performance improvement which are not warnings for the purpose of future disciplinary action, and where this is the case that needs to be clearly identified and understood.

A general injunction to improve performance is a sort of a warning but not necessarily for the purposes of the disciplinary process unless it has been clearly identified as such and properly administered following the steps in the disciplinary process.’

In this case, the Respondent merged the two processes and the Complainant’s PIP review meetings without any warning changed into meeting at which a disciplinary sanction was administered

It is, therefore, my view that both, the first and the final written warnings were issued in an unsound manner.

However, in my view from this point the Respondent made every attempt to rectify any flaws in the process and the process that followed, as outlined below, stand up to scrutiny.

Ms Porter, Senior Community Operations Manager upheld the Complainant’s appeal regarding the final written warning on the basis that the Complainant was not given notice regarding the disciplinary nature of the meeting and an opportunity to invite witnesses to attend on his behalf. She noted that, as he did not appeal the previous warning within specified timeframe, she would not be considering same. Ms Porter recommended that a new disciplinary hearing was carried out by someone who had no prior involvement in the process in any way to date. She also granted the Complainant’s request that a representative from HR attend the meeting as a note taker.

Ms Porter by upholding the Complainant’s appeal on 16 June 2021 attempted to some extend to remedy the situation. I note that the Complainant’s first warning, executed in an unsound manner, remained in place (albeit I note that the Complainant did not formally appeal it until 3 May 2021 and the Respondent subsequently allowed the appeal).

Further issues with uncertified absences occurred and correspondence regarding same ensued from 17 June 2021 onwards.

On 2 July 2021, Ms Holohan, Senior HR Specialist informed the Complainant that in line with the appeal outcome a fresh disciplinary process would be arranged and that at the hearing the Complainant would be given an opportunity to raise any concerns he had regarding the process, the recent PIP and Ms Bourke’s alleged unfair treatment of him. Ms Holohan informed the Complainant that his recent uncertified absences would be addressed separately.

As the Complainant remained on sick leave, the Respondent arranged an occupational health assessment, which on 11 August 2021 deemed him “medially fit to engage with his employer regarding work related matters.”

Ms Marina, Associate HR Business Partner forwarded a copy of the report to the Complainant and informed him that she would be stepping in to arrange the disciplinary process.The Complainant questioned his fitness to participate in the process.

Ms Marina invited the Complainant to a disciplinary hearing to be held on 1 September 2021. The hearing would address the decision to issue a first written warning and the alleged failure to meet the expectations of the PIP of 16 April 2021. Ms Marina informed the Complainant that, while the Complainant failed to appeal the first written warning, the Respondent would, on his insistence, allow him to contest it at this juncture. On this occasion, the Complainant was informed of the appropriate procedure and his right to representation. Ms Marina also pointed out that the Complainant’s most recent absences would have to be addressed separately.

Lengthy correspondence ensued and the Complainant was given another opportunity to attend the hearing on 22 September 2021. It was explained to the Complainant that although he was unfit to return to his substantive role, he was medically fit to engage with the Respondent in work-related matters. As the Complainant continued to disagree, the Respondent arranged another occupational health assessment which concluded that the Complainant was “medically fit to engage with his employer regarding work related matters and in disciplinary procedures.”

The Complainant was again invited to the hearing on Friday 22 October 2021. The Complainant was informed that, if he did not attend or participate, a decision would be made on the information available.

The Complainant replied that he could not attend the meeting as it was very detrimental to his health.

Ms Marina reverted to the Complainant and informed him that, in the absence of grounds for his appeal, his appeal of the first written warning would not proceed and the warning would stand. She confirmed that the disciplinary hearing regarding his failure to pass his PIP would proceed as scheduled on 22 October 2021.

On 28 October 2021, Ms Rowney, Community Operations Manager issued the outcome letter. She confirmed that the appeal of the first written warning could not take place as the Complainant failed to submit his grounds of appeal.  Ms Rowney further found that the Complainant failed to meet the expectation as set out in his PIP dated 16 April 2021, he failed to provide a medical certificate in respect of his absences for 16, 21, and 22 April 2021. Ms Rowney issued the Complainant with a final written warning and recommended that, as he did not complete his latest PIP, he should be issued with a further PIP once he was certified as fit to return to work.

I note the Complainant’s assertion  that the absences occurred prior to the PIP of 16 April 2021 being released to him and prior to his meeting with his Team Lead on 23 April 2021. However, there was no dispute that the Complainant was already on a PIP from 2 April 2021. Therefore, I cannot accept that he was unaware of the requirement to submit medical certificates. Furthermore, the first written warning was issued to the Complainant on 16 April 2021 and Ms Bourke’s letter of that date made him aware that if he failed to meet the objective of a PIP again, it would lead to further disciplinary action, up and including dismissal.

The Complainant submitted his grievance to the Respondent on 4 November 2021. While it was conducted separately to the disciplinary process, I will briefly outline the grievance process.

The Complainant was separately invited to a grievance meeting to be held on 12 November 2021. He failed to attend. The Respondent rescheduled the meeting and invited the Complainant to attend a meeting on 25 November 2021. The Complainant attended on this occasion. Ms Roan, Senior Employee Relations conducted the meeting and issued the outcome on 16 December 2021. The Complainant’s grievances were not upheld. The Complainant was informed of his right to appeal and he did so on 24 December 2021. The Complainant requested that an external party conducted the appeal.

The Respondent appointed Mr A, Employee Relations Partner to conduct the appeal on 3 February 2022. There was no dispute that Mr A was not previously involved in the matter and the Respondent confirmed that he was trained and experienced in conducting workplace investigations. By email of 27 January 2022, the Complainant declined to participate in any further internal hearings.

Separately the Respondent invited the Complainant to an investigation meeting regarding his recent absence certification issues to take place on 1 February 2022. Ms Catherine Kelly, Senior Community Operations Manager II was appointed to conduct the meeting. The Respondent’s letter of 26 January 2022 outlined the matters to be addressed:

·        The Complainant’s medical certificate dated 17 June 2021 was submitted 9 days after the expiry of his previous certificate, despite clear instructions that all absences must be certified

·        The Complainant’s certificate expired on 2 August 2021 and a further certificate was submitted on 5 August 2021. There was no certificate available for 3 and 4 August 2021. The Respondent wrote to the Complainant on 21 June and 2 July 2021 remining him that any medical certificate must be provided on the first day of absence.

The Complainant did not attend the investigation meeting and, in his absence, Ms Kelly recommended that the matters were considered in the context of a formal disciplinary hearing.

On 7 February 2022, the Complainant was invited to a disciplinary hearing to be held on 10 February 2022. Ms Jennifer Clancy, Community Operations Manager was appointed to conduct the hearing.

On 9 February 2022,  the Complainant’s solicitor wrote to the Respondent informing, inter alia, that the Complainant would not attend the hearing as he is not medically fit to engage in any hearing, internal or external.

The Respondent’s solicitor replied on 10 February 2022 advising that that the Complainant was independently assessed by occupational health experts on two occasions and was deemed medically fit to engage in the Respondent’s internal process, including disciplinary hearings, notwithstanding that he was unfit to work.

On 22 February 2022, Ms Clancy issued her outcome of the disciplinary meeting that was held in the Complainant’s absence. The 5-page document concluded that, having regard to the allegations against the Complainant, and in the circumstances where he had a final written warning on his file, it was appropriate to terminate his contract. The Complainant was informed of his right to appeal this decision and if he wished to do so he was asked to furnish his ground of appeal by 1 March 2022.

By letter of 25 February 2022, the Complainant’ solicitor indicated that he wished to do so, albeit no grounds for appeal were furnished. He further requested that an external party conducted the appeal. The Complainant’s solicitor indicated that the ground of appeal would be submitted to the chairperson within a reasonable period in advance of the appeal hearing.

The Respondent’s solicitor replied on 2 March 2022 requesting that the grounds of appeal were submitted by close of business on 3 March 2022. The Complainant’s solicitor was informed that a named Senior Community Operations Manager based in Lisbon was appointed to conduct the appeal and that the Respondent did not agree that it was necessary or appropriate for a third party to conduct the appeal.

The Complainant’s solicitor wrote to the Respondent’s solicitor on 31 March 2022 again requesting  the appointment of an independent chairperson to conduct the appeal hearing and, again, informing that the grounds of appeal would be submitted to the chairperson within a reasonable period of time in advance of the appeal hearing. The solicitor further requested that the name, address and qualifications of an external chairperson be furnished to them and they would take instructions from the Complainant as to his agreement with the nominated chairperson.

The Respondent’s solicitor replied on 8 April 2022 clarifying that the extended deadline to submit the Complainant’s grounds of appeal passed on 3 March 2022. In circumstances where no grounds were submitted, no appeal took place and the decision to dismiss the Complainant stood.

I have carefully reviewed the process from August 2019 when the matter of the Complainant’s attendance and lateness were raised. As outlined above, I have serious concerns with regards to the manner in which PIPs in 2019 and 2020 were carried out. I accept that the Complainant must have been aware that he was late or absent on the occasions listed by the Respondent. However, the Complainant was entitled to a fair process in line with the Code of Practice and the Respondent’s own disciplinary procedure.

Regarding the process that followed, there was no dispute that the Complainant was invited to participate in a fresh process that would deal with the alleged failure of his PIP and would address any concerns he might have had with regard to the PIP process. The Respondent subsequently agreed that the Complainant would be allowed to contest the first written warning during that process, despite that time lapse. The Respondent ensured that the Complainant was assessed and deemed medically fit to participate in the process. An independent person that had no previous involvement was appointed to review the matter. Clearly, the Respondent attempted to remedy the previous shortcomings of the process.

In the absence of meaningful engagement on the part the Complainant, the appeal of the first written warning did not proceed and a decision was reached, in the Complainant’s absence, with regard to his failure to pass his PIP. As a result, the Complainant was issued with a final written warning.

In terms of the separate disciplinary process with regard to the Complainant’s further absences, it is an employer’s right to address them. I note that the Respondent followed the proper procedure in this instance and the Complainant was made aware of the possible consequences of his non-attendance.  However, the Complainant and subsequently his legal representative declined to engage in the disciplinary process.  As a result, and in the absence of meaningful engagement on the Complainant’s part, a decision was made to dismiss the Complainant.

I need to emphasise again that it is not the role of an Adjudication Officer to substitute their own judgment as to whether the dismissal was reasonable for that of the employer.

The case of Foley v Post Office [2000] ICR 1283 was cited with approval by McGovern J. of the High Court in the context of a wrongful dismissal claim in 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 Mummery LJ stated in Foley v The Post Office [2000]/CR 1283 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 that 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.”

It has long been accepted that it is not the role of the Adjudication Officer to re-investigate a matter that led to the dismissal of a complainant. Rather it is the role of the Adjudication Officer as set out by the EAT in Looney & Co. Ltd. V Looney UD843/1984 to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

In considering the question of fair procedures I note that the High Court in its determination in the case of Shortt v Royal Liver Assurance Ltd (2008) IEHC 332 Laffoy J outlined that a central consideration to a fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result.” I note also the determination of the Employment Appeals Tribunal in the case of Murphy v College Freight Ltd (UD867/2007) where the EAT noted that a disciplinary procedure does not need to be “a counsel of perfection” but rather “they must be fair.”

In Rory Donegan against the recommendation of the Rights Commissioner in the case of: Dublin City Council UD302/2015 the Employment Appeals Tribunal emphasised that the Tribunal is limited to deciding the respondent’s fair and reasonableness in all the circumstances and while the process was not perfect, the respondent was not required to be.

The Tribunal noted that any employee in a similar situation must engage in a meaningful manner having regard to keeping his job.

In dealing with the issue of “Procedural v substantive justice” Des Ryan in Redmond in Dismissal Law in Ireland (2017, para 13.20) notes that ‘…procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

As outlined above, I find that there were a number of aspects of the process which did not meet the required standards of procedural fairness. However, the Respondent, following Mr Porter’s decision on appeal in particular, made every attempt to remedy any shortcomings of the past decisions and conducted the process that followed in line with its own policy and in adherence to the fair procedures and natural justice.

The Complainant decided not to engage in the disciplinary and the appeal process. I believe this was a serious error of judgement on the part of the Complainant.

In the case of An employee v An employer ADJ – 00000381 the Adjudication Officer commented as follows:

‘An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction’

In Aryzta Bakeries v Vilnis Cacs UDD 1812 the Labour Court held that;

‘The Court also finds that there is an obligation on the Claimant to exhaust available internal procedures and that the Claimant failed to do so. For the reasons stated above and taking account of the failure of the Claimant to exercise his right of internal appeal, the Court finds that the Claimant was not unfairly dismissed.’

Similarly, in Musgrave Wholeslae Partners v Jonathan Fox UDD1972 the Labour Court held;

‘It is clear that he [the complainant] was advised in writing that he could appeal and was given instructions on how to do so. As found in Aryzta Bakeries, the Court is of the view that there was an obligation on the Complainant to exhaust the available internal procedures which he failed to do.’

I conclude that any employer faced with the same circumstance, the same information and evidence and the same response from an employee would have acted in the same way. I, therefore, find that the conclusion reached by the Respondent in relation to the conduct of the Complainant was reasonable in all of these circumstances.

For the reasons stated above I decide this complaint is not well founded. 

The Complainant submits that he has not received the accrued annual leave payment due and owing to him arising from the termination of his employment.

The Complainant submitted that his sick leave should not have been take from his accrued annual leave.

The Respondent submits that the Complainant was issued with notice on the termination of his employment on 22 February 2022. The Complainant received two weeks’ notice, which meant that his employment terminated on 8 March 2022.

As the Complainant was certified unfit to work (and therefore not available for work), and all his sick leave was unpaid, he was not entitled to receive pay from the Respondent for the duration of his notice period.

Notwithstanding this, the Respondent put through his notice pay as follows:

·        Normal salary was included in February 2022 payroll (reflecting the first week of notice)

·        40 hours’ basic pay was included in the March 2022 payroll (reflecting the second week of notice).

The Respondent processed payment for 80.32 hours’ of accrued annual leave (equivalent of €1,123.71).

The Respondent submits that unpaid sick leave hours are normally deducted a month in arrears. This means that the Respondent deducts the equivalent sick leave from one month in the following month’s pay.

The Complainant was absent on unpaid sick leave for several months up to his dismissal (up to and including the effective date of dismissal on 8 March 2022).

In order to recoup the value of the sick leave hours paid to the Complainant in February 2022 and March 2022 payrolls (160 hours and 40 hours, respectively), the Respondent deducted a total of 200 sick hours from the Complainant’s March 2022 pay, resulting in a negative balance of €962.86 gross on the March 2022 payslip, i.e. zero net pay.

In fact, the Complainant owed the Respondent €962.86 after these sick leave hours were deducted from the March 2022 pay. However, as outlined in the email to the Complainant, the Respondent advised the Complainant that it would not be pursuing the remaining balance.

The Respondent paid all sums due and owing to the Complainant.

Section 23 of the Organisation of Working Time Act,1997 provides as follows:

23. Compensation on cesser of employment

(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

There was no dispute that the Respondent calculated the Complainant’s accrued annual leave entitlement at the termination of his employment as 80.32 hours and included the sum of €1,123.71 in the Complainant’s final pay (payslip dated 25 March 2022).

The Complainant did not dispute these figures. However, the Complainant claimed that the Respondent was not permitted to deduct the overpayment in respect of his sick leave from the accrued annual leave.

The Complainant has separately referred a claim under the Payment of Wages Act, 1991 in respect of the deduction. As this claim relates to the alleged unlawful deduction it is dealt with under the CA-00051075-004

I find that the Respondent calculated the Complainant’s annual leave entitlement and included the sum owed to the Complainant on his final payslips. However, due to an overpayment in relation to the sick leave that was deducted (and the deduction is separately dealt with below), no monies were due to the Complainant.

I declare this complaint to be not well founded.

The Complainant submits that the Respondent has made an unlawful deduction from his wages.

In the WRC complaint referral form, the Complainant stated that the date of the alleged deduction was 25 March 2022, and the amount of the deduction was € 2,798.08.

The Complainant submits that, arising from the termination of his employment, the Respondent deducted hours of sick leave from his payslip which resulted in the Complainant not receiving accrued annual leave payment due and owing to him.

The Respondent submits that the Complainant was issued with notice on the termination of his employment on 22 February 2022. The Complainant received two weeks’ notice, which meant that his employment terminated on 8 March 2022.

As the Complainant was certified unfit to work (and therefore not available for work), and all his sick leave was unpaid, he was not entitled to receive pay from the Respondent for the duration of his notice period.

Notwithstanding this, the Respondent put through his notice pay as follows:

·        Normal salary was included in February 2022 payroll (reflecting the first week of notice)

·        40 hours’ basic pay was included in the March 2022 payroll (reflecting the second week of notice).

The Respondent processed payment for 80.32 hours’ of accrued annual leave (equivalent of €1,123.71).

The Respondent submits that unpaid sick leave hours are normally deducted a month in arrears. This means that the Respondent deducts the equivalent sick leave from one month in the following month’s pay.

The Complainant was absent on unpaid sick leave for several months up to his dismissal (up to and including the effective date of dismissal n 8 March 2022).

In order to recoup the value of the sick leave hours paid to the Complainant in February 2022 and March 2022 payrolls (160 hours and 40 hours, respectively), the respondent deducted a total of 200 sick hours from the Complainant’s March 2022 pay, resulting in a negative balance of €962.86 gross on the March 2022 payslip, i.e. zero net pay.

In fact, the Complainant owed the Respondent €962.86 after these sick leave hours were deducted from the March 2022 pay. However, as outlined in the email to the Complainant, the Respondent advised the Complainant that it would not be pursuing the remaining balance.

The Respondent paid all sums due and owing to the Complainant.

Section 5 of the Payment of Wages Act provides as follows:-

5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(3)

(a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

Or

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The definition of wages in the Act includes any outstanding holiday pay.

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

In the present case, the Complainant alleges that the Respondent made an unlawful deduction in respect of the annual leave due to the Complainant. The Respondent rejects the claim.

There was no dispute that the Complainant’s payslips dated 25 February 2022 included the Complainant’s salary for the month of February, his public holiday pay and a deduction in respect of his sick hours. The payslip dated 25 March 2022, in a similar manner shows 40 hours’ basic pay (the second week of notice up to the date of dismissal), accrued annual leave and a deduction in respect of sick hours, which are unpaid.

The Complainant did not dispute the Respondent’s assertion that unpaid sick leave hours are normally deducted a month in arrears.

I, therefore, accept the Respondent’s position that, in order to recoup the value of the sick leave hours paid to the Complainant in February 2022 and March 2022 payrolls (160 hours and 40 hours, respectively), the Respondent deducted a total of 200 sick hours from the Complainant’s March 2022 pay.

I find that the Respondent wasjustified in making the deduction from any outstanding monies owed to the Complainant on cessation in accordance with the provisions of Section 5(5) of the Act as outlined above.

I declare this complaint to be not well founded.

The Complainant submits that he has not received the accrued annual leave payment due and owing to him arising from the termination of his employment.

The Respondent submits that the Complainant was issued with notice on the termination of his employment on 22 February 2022. The Complainant received two weeks’ notice, which meant that his employment terminated on 8 March 2022.

As the Complainant was certified unfit to work (and therefore not available for work), and all his sick leave was unpaid, he was not entitled to receive pay from the Respondent for the duration of his notice period.

Notwithstanding this, the Respondent put through his notice pay as follows:

·        Normal salary was included in February 2022 payroll (reflecting the first week of notice)

·        40 hours’ basic pay was included in the March 2022 payroll (reflecting the second week of notice).

The Respondent processed payment for 80.32 hours’ of accrued annual leave (equivalent of €1,123.71).

The Respondent submits that unpaid sick leave hours are normally deducted a month in arrears. This means that the Respondent deducts the equivalent sick leave from one month in the following month’s pay.

The Complainant was absent on unpaid sick leave for several months up to his dismissal (up to and including the effective date of dismissal n 8 March 2022).

In order to recoup the value of the sick leave hours paid to the Complainant in February 2022 and March 2022 payrolls (160 hours and 40 hours, respectively), the respondent deducted a total of 200 sick hours from the Complainant’s March 2022 pay, resulting in a negative balance of €962.86 gross on the March 2022 payslip, i.e. zero net pay.

In fact, the Complainant owed the Respondent €962.86 after these sick leave hours were deducted from the March 2022 pay. However, as outlined in the email to the Complainant, the Respondent advised the Complainant that it would not be pursuing the remaining balance.

The Respondent paid all sums due and owing to the Complainant.

This claim is duplication of a complaint referred under the Act that was dealt with above in CA-00051075-003 and, therefore, has been disposed of.

I declare this complaint to be not well founded.

unfair dismissal – annual leave – minimum notice- unlawful deduction-