Complainant

Respondent

Parties

Fergal  Mc Grath

Kashan Carpets trading as Lynfrae trading Company Limited

Representatives

Self  

 Ralph Hance

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-00057393-001

28/06/2023

The Complainant made a single claim:

A claim for unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended).  

Dismissal was not in dispute. The Complainant was employed by the Respondent as a National Sales representative from the 17th of November 2021 until his dismissal, purportedly on grounds of gross misconduct and poor performance, which was communicated to him on the 16th of June 2023. He was paid for two weeks in lieu of notice and the employment came to an end on the 30th of June 2023. The foregoing dates were agreed at the hearing.

The Complainant provided a written submission prior to the hearing which made the following points:

In relation to the van, the Complainant called Mr. Hance straight away when it started to lose power as he was driving. He only noticed the damage afterwards and could only surmise that it happened while he was parked. If he had been driving when this damage occurred, the Airbags would have deployed.

Any instance of the Complainant buying cigarettes and Lotto were a simple case of taking out the wrong AIB card and tapping it.

These errors were never raised with the Complainant. He would happily have given the difference back to the company.

The Complainant totally disagreed that his appearance and presentation to customers was poor. As a professional salesman for numerous years, he would never risk his employment by possibly being breath-tested in the morning.

In terms of building the business and generating sales. The Respondent was in the middle of a cost-of-living crisis. The Complainant spent months off the road, working on design for a company brochure and website. In addition, he was required to deliver over-sized rugs directly to customers. Some of these were sales from the Respondent’s retail shop and had nothing to do with the wholesale business. Also, he was not given any manual handling instruction for some of these products which sometimes were more than 10x12 feet and 100% wool. For Larger orders such as to a customer in Newbridge central buyer for 7 shops (Which I Opened) where there could be more than 100 the Respondent would not pay for a courier, and he had to load the van and deliver.

The Complainant also had to give a Sale or Return service to business in Dundalk and Drogheda which meant he had to call to the shop and do a stock-take, return to the warehouse, and generate orders from existing stock, load his van and then deliver the rugs. This entailed hanging heavy 8x5 rugs from a sliding rack system. This was done on his own, with no training, poor equipment and meant climbing a step ladder carrying the rugs unaided. So, with all these deliveries to account for it was impossible to get a formal schedule of calls in place to build relationships and generate revenue.

None of these issues were raised with the Complainant by the company in a verbal or written notice until he was asked to come to the office on the 16th of June 2023 at which meeting, he was dismissed and asked to return the Fuel Card and the Credit Card.

The Complainant stated his belief that the reason for his dismissal the Respondent’s intention to open an E Commerce Shop to the public and to offer free delivery across Ireland. This would most certainly have adversely affected the wholesale business as the customers would see the Complainant as a competitor as opposed to a supplier, due to the fact that we would be selling to their customers directly.

The Complainant had difficulty securing social welfare entitlements following his dismissal which added to the stress of the situation.

The Complainant represented himself at the hearing and gave evidence on affirmation.

Mr. Raph Hance, The Respondent’s Managing Director, represented the Respondent. A written submission was delivered prior to the hearing.

In his written submission Mr. Hance contended as follows:

There were a number of factors which made the Complainant’s position untenable:

Firstly, he was entrusted with a company van in order to carry out his work. While in his possession

the van was badly damaged; however, the Complainant was unable to provide any information as to how or where the damage occurred. Mr. Hance spoke at length with the garage dealing with the

repairs, and was assured that there was no way this extensive damage could have gone unnoticed,

making the Complainant’s account - that he had no idea where it happened - difficult to believe. While the cost was mostly covered by insurance, the Respondent is now facing a large increase in its insurance premium as a result.

The Complainant was entrusted with a company credit card to cover accommodation and food expenses while travelling. On checking back over several months of spending it was discovered that he was using the card regularly in the morning and evening at his local Pub which was never authorised. He was also using the card to pay for cigarettes and lotto tickets for his own personal use. Mr Hance saw this as a breach of trust, making it very hard to continue allowing the Complainant to manage a company credit card.

In addition to the above, it was contended that the Complainant’s work was very patchy and unproductive. The Complainant was given the benefit of the doubt, knowing that he was coming into a new industry and had to learn. However, after more than a year and a half he was still only able to generate less than 50% of sales figures from pre-pandemic levels. Other areas of the business were subsidising his employment, and this was not sustainable in the long term. The Respondent had since heard from several customers that they had trouble dealing with the Complainant whose presentation and appearance were poor.

It was a very difficult decision to have to let the Complainant go. Mr. Hance stated that he does not take these things lightly. All the other staff members are very long serving and enjoy working for the Respondent. Mr. Hance agonised over this for several weeks, but he finally felt that the lack of trust and costng more than he was bringing in, led him to no alternative but to let the Complainant go. It was a hard decision but ultimately it had to be done in order to protect the company.

Mr. Hance gave evidence on affirmation at the hearing.

Unfair Dismissal

Statutory Provisions

Section (6) subsection (1) of the Unfair Dismissals Acts 1977-2015 provides as follows:

Subject to the provisions of this section, the dismissal of an employee shallbe deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal.

Subsection (4) where relevant to the present case provides as follows:

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…

Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows:

In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Subsection (7) provides where relevant, as follows:

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 …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…

In the present case, dismissal was not in dispute nor was the date of dismissal which was the 16th of June 2023. The dismissal is deemed unfair pursuant to Section 6 (1) unless the Respondent can show “substantial grounds” justifying the dismissal.

In this case the Respondent relied on the conduct of the Complainant (Section 6 (4) (b)) in that he was dismissed on the basis of alleged gross misconduct together with his alleged poor performance pursuant to Section 6 (4) (a).

It is well-established that disciplinary action taken against an employee, including where the employee is dismissed, must follow basic fair procedures. Basic fair procedures require at a minimum  , that prior to any disciplinary action being taken, a disciplinary hearing is required and that any procedures set out in the contract of employment must generally be followed. Prior to any disciplinary meeting (that is to say a meeting where a decision to impose a sanction – up to an including dismissal – is contemplated) the employee concerned must be given advance notice of the meeting, notice that it is a disciplinary meeting which might lead to a sanction up to and including dismissal, details of the allegations to be made at the meeting, evidence supporting such allegations and notification that the employee is entitled to be accompanied to the meeting in accordance with the disciplinary policy of the employer. At the meeting, which must be conducted by an independent person (as distinct from the person making or supporting the allegations), the employee is entitled to make representations and to challenge any evidence against him/her. The employer is then obliged to consider all submissions made fairly and objectively, to carry out any further investigations necessary and to arrive a fair decision. Where a sanction is imposed, that sanction must be proportionate to the infraction as found through the disciplinary process. All documents touching and concerning the disciplinary process from start to finish should be retained and records kept of all relevant meetings. The decision emanating from the disciplinary process should be clearly set out in writing and an appeal offered in accordance with the contract and the employer’s policies and procedures. It is well established that a failure to adhere to any of the foregoing may render a decision to dismiss procedurally flawed and therefore an unfair dismissal for the purposes of the Unfair Dismissals Acts and this is so regardless of the factual basis or the substantive reason for the dismissal.

In the present case there were no written disciplinary procedures, and none were put in place - even on an ad hoc basis. The Complainant was not given due or adequate notification (in writing or otherwise) in advance of the meeting on the 16th of June 2023 either as to the nature of the meeting or of his right to be accompanied, nor was he provided with advance notice of the charges to be made against him or details of the evidence supporting those charges. The person who conducted the meeting and made the decision was the same person who made the charges. The meeting was a one-to one and no notes or minutes were taken. The decision to dismiss was made at the meeting and was not confirmed subsequently in writing. No appeal was offered. In such circumstances it is evident that the disciplinary process, if indeed it can be so described at all, was so fundamentally flawed as to render the dismissal unfair and I so find.

For the reasons stated above, I find that the Complainant was unfairly dismissed.

Redress for Unfair Dismissal

Applicable Statutory Provisions

Section 7 subsection (1) of the Unfair Dismissals Acts provides as follows: 

Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer…considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) 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 (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances…

The parties were agreed at the conclusion of hearing that compensation would be the preferred remedy. I also find that there any form of redress involving a return to work on the part of the Complainant would be unworkable and inappropriate in the circumstances of this case. Accordingly, I deem an award of compensation to be the appropriate form of redress.

The Complainant’s gross weekly pay was agreed in the sum of €769.23. I am satisfied that the Complainant made reasonable efforts to mitigate his losses and that he was unable to secure any employment or non-social welfare income from the date of his dismissal to the date of the hearing in October 2023.

Taking account of the Complainant’s losses from July 2023 (noting that he was paid two weeks’ notice) to the date of the hearing, and allowing for two months future losses thereafter, I deem an award reflecting just short of six month’s losses, the sum of €18,000 to represent just and equitable compensation for unfair dismissal and the Respondent is directed to pay this sum to the Complainant by way of compensation for unfair dismissal. 

CA-00057393-001  The Complainant was unfairly dismissed. The Respondent is directed to pay to the Complainant the sum of €18,000 by way of compensation for unfair dismissal.

Unfair Dismissal – Gross Misconduct – Performance -  Unfair Dismissals Acts 1977 – 2015: Sections 6 (1), 6 (2), 6 (4), - Breach of Fair Procedures

Complainant

Respondent

Parties

Fergal  Mc Grath

Kashan Carpets Lynfrae Trading

Representatives

Self   

 Ralph Hance

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-00057393-001

28/06/2023

The Complainant made a single claim:

A claim for unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended).  

Dismissal was not in dispute. The Complainant was employed by the Respondent as a National Sales representative from the 17th of November 2021 until his dismissal, purportedly on grounds of gross misconduct and poor performance, which was communicated to him on the 16th of June 2023. He was paid for two weeks in lieu of notice and the employment came to an end on the 30th of June 2023. The foregoing dates were agreed at the hearing.

The Complainant provided a written submission prior to the hearing which made the following points:

In relation to the van, the Complainant called Mr. Hance straight away when it started to lose power as he was driving. He only noticed the damage afterwards and could only surmise that it happened while he was parked. If he had been driving when this damage occurred, the Airbags would have deployed.

Any instance of the Complainant buying cigarettes and Lotto were a simple case of taking out the wrong AIB card and tapping it.

These errors were never raised with the Complainant. He would happily have given the difference back to the company.

The Complainant totally disagreed that his appearance and presentation to customers was poor. As a professional salesman for numerous years, he would never risk his employment by possibly being breath-tested in the morning.

In terms of building the business and generating sales. The Respondent was in the middle of a cost-of-living crisis. The Complainant spent months off the road, working on design for a company brochure and website. In addition, he was required to deliver over-sized rugs directly to customers. Some of these were sales from the Respondent’s retail shop and had nothing to do with the wholesale business. Also, he was not given any manual handling instruction for some of these products which sometimes were more than 10x12 feet and 100% wool. For Larger orders such as to a customer in Newbridge central buyer for 7 shops (Which I Opened) where there could be more than 100 the Respondent would not pay for a courier, and he had to load the van and deliver.

The Complainant also had to give a Sale or Return service to business in Dundalk and Drogheda which meant he had to call to the shop and do a stock-take, return to the warehouse, and generate orders from existing stock, load his van and then deliver the rugs. This entailed hanging heavy 8x5 rugs from a sliding rack system. This was done on his own, with no training, poor equipment and meant climbing a step ladder carrying the rugs unaided. So, with all these deliveries to account for it was impossible to get a formal schedule of calls in place to build relationships and generate revenue.

None of these issues were raised with the Complainant by the company in a verbal or written notice until he was asked to come to the office on the 16th of June 2023 at which meeting, he was dismissed and asked to return the Fuel Card and the Credit Card.

The Complainant stated his belief that the reason for his dismissal the Respondent’s intention to open an E Commerce Shop to the public and to offer free delivery across Ireland. This would most certainly have adversely affected the wholesale business as the customers would see the Complainant as a competitor as opposed to a supplier, due to the fact that we would be selling to their customers directly.

The Complainant had difficulty securing social welfare entitlements following his dismissal which added to the stress of the situation.

The Complainant represented himself at the hearing and gave evidence on affirmation.

Mr. Raph Hance, The Respondent’s Managing Director, represented the Respondent. A written submission was delivered prior to the hearing.

In his written submission Mr. Hance contended as follows:

There were a number of factors which made the Complainant’s position untenable:

Firstly, he was entrusted with a company van in order to carry out his work. While in his possession

the van was badly damaged; however, the Complainant was unable to provide any information as to how or where the damage occurred. Mr. Hance spoke at length with the garage dealing with the

repairs, and was assured that there was no way this extensive damage could have gone unnoticed,

making the Complainant’s account - that he had no idea where it happened - difficult to believe. While the cost was mostly covered by insurance, the Respondent is now facing a large increase in its insurance premium as a result.

The Complainant was entrusted with a company credit card to cover accommodation and food expenses while travelling. On checking back over several months of spending it was discovered that he was using the card regularly in the morning and evening at his local Pub which was never authorised. He was also using the card to pay for cigarettes and lotto tickets for his own personal use. Mr Hance saw this as a breach of trust, making it very hard to continue allowing the Complainant to manage a company credit card.

In addition to the above, it was contended that the Complainant’s work was very patchy and unproductive. The Complainant was given the benefit of the doubt, knowing that he was coming into a new industry and had to learn. However, after more than a year and a half he was still only able to generate less than 50% of sales figures from pre-pandemic levels. Other areas of the business were subsidising his employment, and this was not sustainable in the long term. The Respondent had since heard from several customers that they had trouble dealing with the Complainant whose presentation and appearance were poor.

It was a very difficult decision to have to let the Complainant go. Mr. Hance stated that he does not take these things lightly. All the other staff members are very long serving and enjoy working for the Respondent. Mr. Hance agonised over this for several weeks, but he finally felt that the lack of trust and costng more than he was bringing in, led him to no alternative but to let the Complainant go. It was a hard decision but ultimately it had to be done in order to protect the company.

Mr. Hance gave evidence on affirmation at the hearing.

Unfair Dismissal

Statutory Provisions

Section (6) subsection (1) of the Unfair Dismissals Acts 1977-2015 provides as follows:

Subject to the provisions of this section, the dismissal of an employee shallbe deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal.

Subsection (4) where relevant to the present case provides as follows:

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…

Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows:

In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Subsection (7) provides where relevant, as follows:

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 …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…

In the present case, dismissal was not in dispute nor was the date of dismissal which was the 16th of June 2023. The dismissal is deemed unfair pursuant to Section 6 (1) unless the Respondent can show “substantial grounds” justifying the dismissal.

In this case the Respondent relied on the conduct of the Complainant (Section 6 (4) (b)) in that he was dismissed on the basis of alleged gross misconduct together with his alleged poor performance pursuant to Section 6 (4) (a).

It is well-established that disciplinary action taken against an employee, including where the employee is dismissed, must follow basic fair procedures. Basic fair procedures require at a minimum  , that prior to any disciplinary action being taken, a disciplinary hearing is required and that any procedures set out in the contract of employment must generally be followed. Prior to any disciplinary meeting (that is to say a meeting where a decision to impose a sanction – up to an including dismissal – is contemplated) the employee concerned must be given advance notice of the meeting, notice that it is a disciplinary meeting which might lead to a sanction up to and including dismissal, details of the allegations to be made at the meeting, evidence supporting such allegations and notification that the employee is entitled to be accompanied to the meeting in accordance with the disciplinary policy of the employer. At the meeting, which must be conducted by an independent person (as distinct from the person making or supporting the allegations), the employee is entitled to make representations and to challenge any evidence against him/her. The employer is then obliged to consider all submissions made fairly and objectively, to carry out any further investigations necessary and to arrive a fair decision. Where a sanction is imposed, that sanction must be proportionate to the infraction as found through the disciplinary process. All documents touching and concerning the disciplinary process from start to finish should be retained and records kept of all relevant meetings. The decision emanating from the disciplinary process should be clearly set out in writing and an appeal offered in accordance with the contract and the employer’s policies and procedures. It is well established that a failure to adhere to any of the foregoing may render a decision to dismiss procedurally flawed and therefore an unfair dismissal for the purposes of the Unfair Dismissals Acts and this is so regardless of the factual basis or the substantive reason for the dismissal.

In the present case there were no written disciplinary procedures, and none were put in place - even on an ad hoc basis. The Complainant was not given due or adequate notification (in writing or otherwise) in advance of the meeting on the 16th of June 2023 either as to the nature of the meeting or of his right to be accompanied, nor was he provided with advance notice of the charges to be made against him or details of the evidence supporting those charges. The person who conducted the meeting and made the decision was the same person who made the charges. The meeting was a one-to one and no notes or minutes were taken. The decision to dismiss was made at the meeting and was not confirmed subsequently in writing. No appeal was offered. In such circumstances it is evident that the disciplinary process, if indeed it can be so described at all, was so fundamentally flawed as to render the dismissal unfair and I so find.

For the reasons stated above, I find that the Complainant was unfairly dismissed.

Redress for Unfair Dismissal

Applicable Statutory Provisions

Section 7 subsection (1) of the Unfair Dismissals Acts provides as follows: 

Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer…considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) 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 (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances…

The parties were agreed at the conclusion of hearing that compensation would be the preferred remedy. I also find that there any form of redress involving a return to work on the part of the Complainant would be unworkable and inappropriate in the circumstances of this case. Accordingly, I deem an award of compensation to be the appropriate form of redress.

The Complainant’s gross weekly pay was agreed in the sum of €769.23. I am satisfied that the Complainant made reasonable efforts to mitigate his losses and that he was unable to secure any employment or non-social welfare income from the date of his dismissal to the date of the hearing in October 2023.

Taking account of the Complainant’s losses from July 2023 (noting that he was paid two weeks’ notice) to the date of the hearing, and allowing for two months future losses thereafter, I deem an award reflecting just short of six month’s losses, the sum of €18,000 to represent just and equitable compensation for unfair dismissal and the Respondent is directed to pay this sum to the Complainant by way of compensation for unfair dismissal. 

CA-00057393-001  The Complainant was unfairly dismissed. The Respondent is directed to pay to the Complainant the sum of €18,000 by way of compensation for unfair dismissal.

Unfair Dismissal – Gross Misconduct – Performance -  Unfair Dismissals Acts 1977 – 2015: Sections 6 (1), 6 (2), 6 (4), - Breach of Fair Procedures