Worker

Employer

Anonymised Parties

A Salesperson

A Hardware Company

Representatives

 IBEC

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

CA-00059293

5th October 2023

The respondentis a family-owned hardware business, and the complainant was re-employed there on October 26th, 2022, as a sales representative. He worked 40 hours per week and received a basic salary of €42,000.

He says that his employment was terminated unfairly.

The respondent pulled the complainant up one week on the GPS tracker in his company car. They wanted to know why sales calls were taking so long.  He says that he answered all the questions correctly and went away on a week’s holidays and camebacktoaletteroftermination.

He did not receive any verbal or written warning.

He previously worked with this company for nearly seven years but left two years earlier. He was asked to come back last year and was told he would get a €5000 loyalty bonus at the end of September 2023 which failed to qualify for by two weeks.

The complainant says that he was told some time before the disciplinary hearing by a senior manager that he was going to dismissed.

He feels that he gave entirely satisfactory explanations for all the issues they raised about time spent on sales calls.

Of the 482 minutes of time allegedly lost 360 of these were fully accounted for by one particular sales visit to Navan.

On June 6th, 2023, the complainant was found asleep in his car while on duty. The Sales Manager noticed the length of time the tracker on the complainant's car had not moved and went to investigate.

The complainant stated that he was suffering from insomnia. The respondent emailed him later that day about the incident and offered some support. On June 12th, 2023, an informal warning was sent to him. He was provided with information about the Employee Assistance Programme and also informed that the disciplinary procedure would be invoked if this occurred again.

The sales manager met with him on August 9th, 2023 to discuss his performance. He failed to appear for work and sent a WhatsApp message to inform his manager of his absence. It was decided that the Complainant would produce a weekly report on completed calls and potential customers.

He was invited to an investigation on August 24th, 2023. Seven points based on information gathered from the Verizon tracker and failure to complete weekly reports were outlined in the letter. There was investigation meeting was conducted on 31 August 2023 by the HR manager and another manager.

The seven points outlined in the investigation letter were discussed. (Details submitted).

On September 1st,2023, the complainant was invited to disciplinary hearing which took place three days later on September 4th, 2023. On September 12th, 2023, he was issued with the outcome of the investigation . Based on the investigation, he was dismissed and informed of his right to appeal.

On25September2023,thecomplainantconfirmedthatheisappealing the decision and On 25 September 2023, hewas invitedto an appealhearing which took place on September 29th.  2023,

TheComplainant stated thereasonswhyhethoughthisdismissal was unfair.

OnOctober 4th,2023,theappealoutcomewasissued and thedecision todismiss was upheld and the following day,theclaimwaslodgedtotheWRC.

The role of an Adjudication Officer in an IR referral is to

 "investigate any trade dispute referred to him, and shall, unless before doing so the dispute is settled, make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute" (Section 13).

This does not allow the Adjudication Officer to make specific findings as to what they consider the outcome of an internal investigation should be; rather their role within an Industrial Relations hearing is to assess whether the process conformed to the general principles set out in the Code of Practice on Grievance and Disciplinary Procedures (SI146 of 2000).

Respectfully, it is not the function of the Adjudication Officer or Court to form an opinion as to whether the Respondent was objectively correct in their conclusions; rather its role is to establish if the Respondent acted fairly in its dealings with the Complainant.

In the case of Cash in Transit Driver v Security Transport Respondent (ADJ-00025311), it was deemed that the process was handled within the parameters of the Respondent's policy correctly. The disciplinary process was conducted in line with the Respondent's policy and the Adjudicator could not agree with the Worker's criticism that the investigation was bias, unfair, and flawed. Therefore, the Adjudicator was satisfied that the Respondent acted fairly at all times.

The respondent's position is that the investigation of the disciplinary, the disciplinary hearing and appeal processes were conducted fairly, and that the respondent behaved reasonably. The complainant was found on the balance of probabilities after a thorough investigation in line with the respondent's procedures, to be inactive for a total of 482 minutes which is a total of over 8 hours in one working week.

On top of this, he failed to follow instruction by advising his manager of prospect in his territory and failed to write up and send details of notes of sales calls carried out weekly. The complainant was, at all times, afforded all benefits of fair procedure, in line with the Respondent's established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures (S1 146 of 2000) and the universal principles of natural justice.

In the case of Euro Car Parts Ireland Limited v A Worker (LCR22092), The Court decided that.

 "In relation to the process followed and the report issued, the Worker could not point to any failure by the Respondent to follow the Respondent procedures, rather his issue appears to be that he disagrees with the findings of the Investigator. The Court finds that the Worker's complaint was investigated in a fair manner and on that basis the appeal must fail".

In light ofalloftheabove, the respondent believesthat theprocess was procedurally fair inallrespects,andthatitactedinaccordancewiththeDisciplinaryprocedure andSI146/200atalltimes.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

It is clear from the above that the respondent faithfully followed all the steps of the normal disciplinary process, and it has the superficial appearance of a fair process.

On June 6th, the complainant was found asleep in his car. He explained this on the basis of a recent tragedy involving close friends and resulting insomnia. It appears the respondent was sympathetic, offering support and access to its Employee Assistance Programme.

However, somewhat inconsistently with this supportive attitude the respondent wrote to him a few days later and, in the course of very mixed messaging, some again apparently supportive, issued a warning as to his future conduct.

In between, on August 9th he received another letter, again expressing sympathy on his family issues but drawing attention to his performance. This was followed on August 24th by an invitation to an investigation meeting to review seven issues, four of them alleging ‘lack of work activity’, based on information drawn from the satellite tracker.

The purpose of the meeting was to get ‘your side of events’.

I reviewed the minutes of that investigation, and the complainant gave a reasonable account of himself. In particular he made points about the intrinsically poor value of his territory, which met the response ‘Ok let’s move on’.

In due course, the meeting concluded with the complainant confirming that he was happy that the process was fair. Up to that point it had been.

He was a good deal less happy with what happened next, as he told the hearing that he thought he had given satisfactory answers to all of the issues raised. What happened next was an invitation to a disciplinary hearing on the basis that.

‘based on the items being investigated, and the explanations offered by you, you are being charged through our disciplinary procedures’.

There was no indication of the outcome of the investigation, no report, no reasoned or any findings on what conclusions were reached on the complainant’s explanations. The list of disciplinary charges contained five of the seven items that had been the subject of the investigation, without any explanation as to why some had been excluded, or, more importantly why those which were included had been.

The complainant did himself no favours at the disciplinary hearing, to judge from the minutes and offered little in the way of any defence, and he had agreed to proceed without a companion. He asked the respondent for a second chance.

He did not get one. His employment was terminated by letter of September 12th, again without any reasons given, or outline of conclusions on the allegations or why that had been reached.

He appealed.

The minutes of the appeal indicate a more robust defence of his performance by the complainant. He concluded by saying that he believed the process was flawed and that it was unfair to dismiss him. He told the hearing that he could not understand why the explanations he had given earlier in the process had not been persuasive.

His appeal was dismissed with the same economy as was seen at previous stages of the process. No reasons or explanation were given, there was no response to, or rebuttal of the points made by the complainant, in short, no indication that the complainant’s case was given any sort of objective, or indeed any hearing.

The respondent helpfully made the following submission to the hearing, referring to Section 13 of the Act and stated

This does not allow the Adjudication Officer to make specific findings as to what they consider the outcome of an internal investigation should be; rather their role within an Industrial Relations hearing is to assess whether the process conformed to the general principles set out in the Code of Practice on Grievance and Disciplinary Procedures (SI146 of 2000). Respectfully, it is not the function of the Adjudication Officer or Court to form an opinion as to whether the Respondent was objectively correct in their conclusions; rather its role is to establish if the Respondent acted fairly in its dealings with the Complainant.

This is correct. But on these facts, I find the process to have been deeply flawed from the moment the ‘investigation’ was launched.

No report or findings were issued from the investigation, the complainant had no means of knowing specifically what case he had to answer at the disciplinary hearing or why his explanations had been rejected, no reasoned finding followed from the Disciplinary hearing and the Appeal  was just as bad.

The letter dismissing the appeal baldly stated.

‘After taking into consideration the information provided by you at the hearing, and reviewing the case in full, I am now writing to confirm that the sanction of Dismissal from [the respondent].remains unchanged.

In the absence of reasons and reasoning, there is no evidence that moves this statement beyond mere assertion.

There is no sign anywhere in this process that the complainant’s case was ever taken into consideration at any stage. His submission to the hearing that he was told by a senior manager that he was going to be dismissed was rejected by the respondent HR Director at the hearing, but all of the evidence points to his case being pre-determined from the outset.

Accordingly, to refer to the respondent‘s quote above I do not ‘form an opinion as to whether the Respondent was objectively correct in their conclusions’; but merely point up the fatal flaws in how the processes were carried out, which is precisely the jurisdiction defined there.

It is not sufficient for an employer to demonstrate familiarity with the various steps in the process that have to be followed and then assert that fair procedure has been served.

This is a case of a little learning being a dangerous thing; it is only partially to understand the obligations of conducting a fair process. That gives rise to obligations in respect of both the type of process required and the conduct of those carrying it out. Among the central obligations falling on such decision makers is that they give a person the ’right to be heard’, in a meaningful way; the fair procedure pillar of ‘audi alteram partem’.

It is necessary to demonstrate that a worker’s case has been judged objectively and fairly, and that he is given reasons as to why, for example an investigation will proceed to disciplinary, why a decision maker at disciplinary decided as they have etc.

None of that happened in this case and it is not sufficient to simply assert that something has been ‘considered’ when all the evidence indicates that it has not.

The complainant was not without fault, and he certainly exposed himself to hazard. But that does not mean that a fig leaf of a process can be constructed to provide cover for what has every appearance of a predetermined decision to terminate his employment before any aspect of the process was set in train.

While it may be coincidental, it is especially suspicious that his employment was brought to an end in the circumstances just described a matter of two weeks before the respondent would have been due to pay him an agreed bonus of €5,000.

Unfair Dismissal; Industrial Relations Act.