Complainant

Respondent

Parties

Ian  Walsh

Smyly Trust Services

Representatives

N/A

Niamh Ni Cheallaigh IBEC

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-00058405-001

21/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00058405-003

21/08/2023

The Complainant began his employment as a Social Care Worker with the Respondent on 20 October 2004 and was paid a monthly salary of €1,800. He stated that he was unfairly dismissed from his employment on 4 April 2023.

The Complainant stated that the grounds for his dismissal were unfair. In relation to the first allegation against him, he stated that he was unable to attend his GP because he had covid and further asserted that the Respondent’s sick policy was not clear. In relation to the allegation that he did not refund the monies he got from social welfare when he was off sick, the Complainant stated that the Respondent never provided him with their bank details which would have allowed him to refund the money. In addition, he stated that he had spent money on legal fees as well as HR advice and that given the cost of these, he wanted to come to an agreement with the Respondent on the amount of monies to be refunded. In relation to the allegation that he refused to attend an occupational health assessment, he stated that he did not receive notification of same because it went to his work email account, which he was not monitoring because he was off sick. In relation to the allegation that he was operating his own business while he was on sick leave, the Complainant stated that the Respondent was already aware that he had his own business. In addition, he asserted that his shoulder injury made him ineligible to hold sessions but that he had to be present when the instructors took customers out because they were under 18.

On 21 March 2022, the Complainant emailed the Respondent advising he would be unavailable for work on the following day. He subsequently provided a medical certificate for the period from 21 March 2022 – 3 April 2022. The illness cited was ‘left shoulder pain’.

On 5 April 2022, the Respondent emailed the Complainant to advise him that an Occupational Health Appointment was scheduled for 27 April 2022 in Dublin. On 13 April 2022, the Complainant requested the appointment to be rescheduled to a location in either Galway or Limerick. On 20 April 2022, the Respondent advised that the appointment was rescheduled to take place on 5 May 2022 in Limerick to accommodate the Complainant’s request.

On 25 May 2022, the Respondent emailed the Complainant advising him that the Occupational Health report deemed him unfit to work for one month on the basis of ‘shoulder issue and decreased levels of well-being’.

On 3 August 2022, the Respondent emailed the Complainant advising him that another Occupational Health appointment was scheduled for 23 August 2022 but the Complainant failed to either attend or notify the Respondent that he would not be doing so. As a result, the Respondent wrote to the Complainant on 24 August 2022 and requested that he attend a meeting on 1 September 2022

On 30 August 2022, the Complainant responded to the Respondent’s letter of 24 August 2022. In this letter, the Complainant claimed that he did not receive the letter dated 12 August 2022 advising him of the Occupational Health Assessment on 23 August 2022 and further stated that he made an application for illness benefit on 23 August 2022. The Complainant also referred to the invite to a meeting scheduled on 1 September 2022, and claimed it was a threat against him.

On 30 August 2022, the Respondent responded to the Complainant’s letter they had received earlier that day and highlighted that he failed to answer the questions raised in their previous letter of 24 August 2022. The Respondent further outlined that the Complainant failed to provide medical certification in a timely manner and had not applied for Social Welfare Benefit, in line with the company’s sick policy. The Respondent stated that it was their belief that that the Complainant failed to attend the Occupational Health Appointment on 23 August 2022 due to working within his own business, as had been seen on Facebook and Trip Advisor.

On 19 September 2022, the Respondent wrote to the Complainant via email and post. In this correspondence, the Respondent referred to previous correspondence sent to the Complainant which was not responded to. The Respondent outlined that the Complainant had failed to provide medical certificates within a timely manner and failed to provide the Respondent with the returned social welfare payments in accordance with the Respondent’s sick pay policy. The letter also highlighted that the Complainant failed to attend an Occupational Health appointment on 23 August 2022. The letter further stated the Complainant was operating his own business at this time and made reference to a social media post on the Complainant’s website which stated that he was running a paddle boarding course during this period. The Respondent invited the Complainant to attend an investigation meeting on 28 September 2022.

On 19 October 2022, the Complainant attended an Occupational Health Assessment, further to which the doctor deemed him fit to return to work. Although, the doctor also encouraged the Complainant to address any work concerns through the appropriate work processes and procedures, he failed to return to work.

On 20 December 2022, the Respondent wrote to the Complainant stating that his Occupational Health results deemed him ‘fit’ to work and gave him one final opportunity to attend an investigation meeting scheduled for 11 January 2023

On 11 January 2023, the Complainant attended the investigation meeting, conducted by David Power, Director of Services. The purpose of this meeting was to discuss;

·        The alleged failure to supply medical certificates, in line with the Respondent’s Absence Policy

·        The alleged application to Social Welfare during the period of absence

·        The alleged failure to attend an occupational health appointment on 23 August 2022

·        The alleged operation of personal business during the Complainant’s absence

On 27 February 2023, Mr Power outlined his recommendations following the investigation meeting and referred the matters to a disciplinary hearing.

On 22 March 2023, the Complainant attended a disciplinary hearing, conducted by Ms Mona Baker, a member of the Respondent’s Board. The purpose of the hearing was to discuss the allegations dealt with during the investigation meeting.

On 5 April 2023, the Respondent issued the outcome of the disciplinary hearing which was to dismiss the Complainant without notice on the grounds of gross misconduct.

On 18 April 2023, the Complainant appealed the decision of the Respondent to dismiss him. The appeal hearing, which took place on 17 May 2023, was conducted by Ms Grainne Flynn, a member of the Board. The Complainant stated at the appeal hearing that his main concern was around why the investigation meeting was carried out by Mr Power. He also asserted his belief that the Respondent had not dealt with any of his complaints and highlighted that he had since sent the Respondent medical certificates to cover his absence, and that some were back dated. He further alleged that the Respondent knew that he was operating another business as he took the young people out on the water on several occasions.

The outcome of the appeal hearing was issued on 23 Mary 2023 and the decision to dismiss the Complainant was upheld.

The Law 

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

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 qualification 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 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.

Section 6(6) of the Act states 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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal”.

Section 6(7) of the Act states 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, 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.

Analysis and Findings

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

Specifically, I must establish firstly whether the procedures used by the Respondent were fair, if they complied with the provisions of The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000) and if they were in line with what was set out in the Respondent’s Employee Handbook. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is 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.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be considered.

·        He had not been fully medically certified for the duration of his absence

·        He had not refunded the Respondent for sick pay received from Social Welfare despite same having been explicitly included within the Respondent’s Sick Pay Policy

·        He had been operating his own business while on sick leave from the Respondent

·        He failed to attend an occupational health assessment

In examining firstly if the procedures used by the Respondent in relation to the dismissal were fair, I note firstly that despite the Respondent’s Disciplinary Policy stating that “any investigation will be governed by clear terms of reference”, no such terms of reference were furnished to the Complainant prior to the commencement of the investigation. In addition, I noted that Mr Power stated in his investigation report that the Complainant was “guilty of “Serious/Gross Misconduct” as provided for under the disciplinary procedure.” As well as being highly prejudicial to the Complainant, this finding by Mr Power of serious/gross misconduct was not provided for in the Respondent’s disciplinary policy which states that a disciplinary hearing may be convened if “there is a reasonable belief that the employee is guilty of the alleged misconduct.” I am therefore of the view that Mr Power overstepped the mark in making the definitive finding that the Complainant was guilty and note that in McLoughlin v. Setanta Insurance Services [2012] 23 ELR 57, Laffoy J granted an interlocutory injunction restraining a disciplinary process because it was found that the human resources manager went beyond investigating the matter at issue, having already made findings of fact before any disciplinary hearing had taken place. This is also consistent with the findings of the Adjudication Officer in A School Secretary v A Primary School – ADJ 28138 where it was found that the investigation carried out “by the school principal was flawed”. Specifically, the AO highlighted that “Her report makes findings based on the facts that are highly prejudicial to the Complainant” and ”strayed into the territory of making an adverse finding. However, the guilt of the Complainant could only be determined after a fair hearing.”

Considering the foregoing points, I therefore find that the disciplinary process was procedurally flawed because of the highly prejudicial findings of the investigator. Accordingly, and notwithstanding the fact that there may have been a reasonable basis for the Respondent to terminate the Complainant’s employment, I find that the dismissal was unfair.

CA-00058405-001:

The Law:

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) 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, 

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate form of redress in accordance with section 7 (1) of the Act set out above. I note the Complainant’s preference for compensation as a remedy and find that this is appropriate in this instance.

In calculating the level of compensation to award, I have regard to the decision of the Adjudication Officer in ADJ 32667, where she stated, inter alia, that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

When applying the provisions of section 7(2)(a) to this case, I am of the view, as outlined above, that the investigator acted unreasonably in finding that the Complainant was guilty of serious/gross misconduct. Having regard to section 7(2) (b) and (f), I find that, notwithstanding its unfairness, the Complainant contributed substantially to his dismissal via his misconduct. Furthermore, in relation to section 7(2)(d) and (e) of the Act, I find that the Complainant was not afforded “a fair examination, and impartial determination of the issues” in respect of the disciplinary process, as set out in SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures, because of the prejudicial findings of the investigator in advance of the disciplinary hearing. Considering section 7(2)(c), it is worth noting that the Complainant provided little evidence of actively seeking work after his dismissal and it is my finding that his attempts to mitigate his financial loss arising from the dismissal were insufficient.

I must also recognise that the Complainant lost his rights under the Redundancy Payments Acts, 1967 to 1973, as set out in section 7 (3) above, as a result of the termination of his employment.

This is consistent with the decision of the Adjudication Officer in ADJ-00033768 who stated inter alia that:

“It is important to note that actual loss, prospective loss and a redundancy entitlement are separate and distinct. Actual and prospective loss is calculated according to loss arising after the (unfair) dismissal. The third category relates to an entirely separate head of loss, that of a lump sum entitlement from accrued service.

For clarity, this applies to all unfair dismissals where compensation is to be awarded, and…It arises from the definition of ‘financial loss’ in section 7 and is not related to the grounds for the dismissal”

Considering all of the foregoing points, I make an award of €4,500 in respect of the unfair dismissal.

CA-00058405-003:

This complaint was withdrawn.