Complainant

Respondent

Parties

Myles  Byrne

K & J Townmore Ltd.

Representatives

Hamilton Turner Solicitors

Mark Cronin

Associate Company Director

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055228-001

22/02/2023

The Complainant was a crane driver and described as a banksman/telehandler. He commenced working for the Respondent on the 21 April 2021. His employment ended on the 16 November 2022.

His claim was for unfair dismissal. He had more than 12 months service.

His gross pay was agreed between the parties at €1,000 per week.

The Complainant gave evidence as to his efforts to mitigate his loss. He advised that that he was re-employed within three weeks of his dismissal on the same wages.

The Complainant's case was that he was dismissed without notice on the 16 November 2022.

He gave evidence as to how he worked the October Bank Holiday in 2022 at the Respondents request. This was to keep the sub- contractors on-site in work. Despite this, he was not paid the hours he worked that week or paid to the correct rate of pay. He reviewed his payslips and timesheets with the site manager. It was noted that his payslip was short a considerable amount of time worked.

The following day, the site manager informed the Complainant that he had been instructed by the company owner to "let the Complainant go" with immediate effect. The Complainant challenged why he was being dismissed. He was informed that he had clocked in and clocked out from his home and this was a serious breach of company policy. The Complainant expressed his dissatisfaction on this with the site manager. He also spoke with another co-director of the Respondent, all to no avail.

The Complainant did not deny that at times he clocked in and locked out from his home. He explained that he had an old phone and it was usually “dead by the end of the day”.  He lived approximately 500 m from the construction site. He described how on occasion he omitted to log in before shift commenced at 8:00 AM. Instead, he would login at 7:40 AM when prompted by the time app. He explained that at most this was 10 minutes before he arrived on site for work. He can he advised that the site manager his supervisor was aware of this and no issue had been raised previously in relation to this early login.  He explained that the site manager kept a manual timesheet in addition to the Clock IT app. He described it as “a dual system”. The Complainant explained that in any event he only got paid for the hours 8 AM to 6 PM. There was no evidence that he was paid for hours in excess of those contractual hours.

The Complainant believed that the reason for his dismissal was contrived. He felt he was dismissed for raising an issue in relation to the underpayment of his wages. He submitted that either way the dismissal was summary and had no regard to the principles of natural justice or fair procedures.  He explained how he never met the decision maker or never received any correspondence explaining the issues that the Respondent had with him or the reason for his dismissal.

The Complainant referred to the provisions of the Unfair Dismissals Act 1977 and in particular section 6. He also referred to the decisions in Hennessy -v- Read and Write Shop Ltd 1978 and Frizelle -v-New Ross Credit Union 1997 among other cases. He also relied on SI 146/2000.

In relation to redress, the Complainant submitted that given the calculated nature of the manner in which the Complainant was dismissed, the Complainant should be awarded the highest possible award.

The Respondents case is that the Complainant was dismissed over a dispute with regard to the hours that he worked on site. The director explained that the Respondent used a punch in/punch out app on each employee's mobile phone called 'Clock IT'.  The app has the function to check location of the logging in vis-a-viz the site location.

It was discovered that the Complainant was clocking in and out from his home. As he was being paid for the hours worked, he was paid in excess of the hours actually worked on site. It was submitted that it did take circa 10 minutes for him to get to site from his home. It was explained that he punched in off-site 119 times and he punched out off-site 60 times during his employment. The pattern became more frequent in the last 3 to 4 months. The director explained that the app does allow for a 'correction request' and the Complainant did this occasions at the beginning of his employment when he corrected the time of login/logout to start on site. However, he had stopped using the correction facility. The evidence was that Respondent considered this behaviour gross misconduct and unacceptable. The decision was made to end the employment giving him one week's notice and any outstanding holiday pay.

Under cross examination, the witness accepted that there was no investigation of the Complainant's behaviour prior to him enquiring about his payslip on the 15 November 2022.

Evidence was given that the site manager had relocated to Canada and was not available to give evidence to the hearing.

I was advised that the decision maker was not feeling well and not available to attend the hearing either.

I was advised that the Complainant was informed in writing of the decision to dismiss him.  It was accepted that no part of the disciplinary process was in writing nor was there any disciplinary hearing. It was also accepted that there was no appeal process.

The Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 sets down standards and minimum entitlements for any workplace.  The code sets out that the procedures serve “a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.”

The 1993 Unfair Dismissals Act also addresses the procedural obligation dimension and section 5 (b) provides in the determination of 'fairness', the decision maker shall have regard to:

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

and

(b) the extent (if any of the compliance or failure to comply by the employer are, in relation to the employee, with the procedure referred to in section 14 (1) of the 1977 Act.

Having heard the evidence both sides, I'm satisfied that the manner of the Complainant's dismissal fell far short of the standard of fairness that could be expected from a reasonable employer. The Complainant was denied an opportunity to address any concerns the Respondent may have had in relation to his conduct in clocking in and out on the time App. At no point was the Complainant advised there were any difficulties with his employment or clocking in process or that his employment was in jeopardy.

The lack of procedures or fairness in the dismissal was contrary to the most basic requirements of procedural fairness and good practice.

I find that the dismissal of the Complainant was unfair.

In regard to redress, I find that compensation is the most appropriate in the circumstances. I note that the Complainant incurred financial loss attributable to the dismissal. It is commendable that the Complainant found employment so quickly after his dismissal.

Section 7 (1) (c) sets out that "if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss as is just and equitable having regard to all of the circumstances".

Having considered the facts of this case and the serious flaws in the procedures adopted by the Respondent in the summary termination of the Complainant's employment, I award the Complainant compensation to the level of six months’ pay amounting to €26,000.

This complaint is well founded. I award the Complainant the sum of €26,000.

Summary dismissal.

SI 146 of 2000

Fair procedures