Complainant

Respondent

Parties

Grzegorz Grygier

Ideal Fire Limited

Representatives

 The complainant was self-represented and he had Carolina, his wife with him as a support

Martin Moloney, MP Moloney Solicitors

Ray Dooley (Company Director) Ideal Fire Limited

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-00056518-001

08/05/2023

The Complainant, Mr Grzegorz Grygier stated he commenced employment on 12 January 2022.

The Respondent confirmed the correct company name is Ideal Fire Ltd and the Solicitor and company representative agreed to have the Claim Form amended accordingly.

The Complainant stated he got a new job on 14 February 2023, and it paid him similar wages.

The Complainant was dismissed by the Respondent so that is not in dispute, but the Respondent stated the date of termination is at issue.

The Complainant gave evidence and stated after probation he spoke with Mr Ray Dooley, Company Director, Ideal Fire Limited asking for training for the gas suppression systems as he wasn’t comfortable.  He stated he did not get any training.  He stated he only did one previously and a mistake occurred as a result.

Mr Grygier stated at the last meeting on 9 January when he was terminated Mr Dooley said your mistake reference the gas suppression cost him €15K and he felt he was victimised as a result and was terminated. Mr Grygier stated he was never given the chance to improve and was never told about any issue and he never received any training just the Senior Engineer went out with him.

The Complainant stated Mr Dooley, said he was happy with his performance and never was told differently or had no meetings. The Complainant stated he never finished early, and he said he could finish at 4.30pm with half hour break and he said that was best for him. The Complainant stated on the Friday before Christmas he finished half day as he had done all his work that day and his colleague told him it was half day.

Mr Grygier stated he worked for 4 years before there as an Engineer, and he didn’t think he was a Senior Engineer. He stated his contract and previous job titles have been Service Engineer not Senior Engineer.

Under cross examination Mr Grygier stated he had previous experience since 2018 in a Fire company which is the same but did no gas compression work.  He stated this role had a higher salary (15%) than his previous job.  He stated he learned his trade via experience, and he got training with his previous employer.  The Complainant stated in this role he received one training session with a Senior Engineer the first time and he did it himself the second time but there was a gap of number of months since the training so that’s why issues occurred.

The Complainant stated in relation to the final payment it included his pay, notice of 4 weeks and holidays.  He stated Mr Dooley took him through his final payslip dated 23 January 2023 which is the day he got paid.

The Complainant stated his payslip says “plus February pay” which was 2 weeks’ pay into February.

The representative for the Company got the Company Director, Ray Dooley to give evidence.

Mr Dooley confirmed on 9 January 2023 he asked the Complainant, Mr Grygier to come into the office and said he was terminating his employment that day and gave him a letter to say that.

Mr Dooley stated he had no interaction with Mr Grygier after he left work that day.  He confirmed Mr Grygier did not carry out any work after that date.  He stated in relation to his notice of 4 weeks in his contract he stated he paid the Complainant in lieu of notice.  He stated this was to cover the Complainant for up to the first two weeks of February.

Mr Dooley stated the Complainant received training when they started and based on their experience, they would send them out with a senior person to confirm they are OK and then after that they are left to work on their own.

Mr Dooley stated he terminated the Complainant’s employment on that day as it wasn’t working out.

Mr Dooley stated the role the Complainant was asked to do matched his experience and they expected he would be able to do the job based on the rate he was paid. He stated they were not notified by Mr Grygier he had issues with servicing gas suppression systems.  Mr Dooley stated Mr Grygier had done it previously also.

Mr Dooley stated he didn’t get any confirmation of Mr Grzegorz Grygier being trained prior to employment or during performance.

Mr Dooley stated they were not happy with the Complainant’s performance. He stated Mr Grygier was booked into a job and couldn’t contact him for hours and when they got in contact with him, he stated he finished and left work on time. 

Mr Dooley stated no formal process occurred to put this information to him and give him the opportunity to respond nor was it put to him that this would result in disciplinary.

Mr Dooley stated that out of 100 clients 3 /4 would only have gas suppression systems. Mr Dooley stated they would have expected the Complainant to have knowledge in this or would have told them reference his lack of knowledge otherwise.

Mr Dooley stated the Complainant asked for a reason for his termination and he stated the company told him that the issue with the gas system cost him €15,000.

Mr Dooley stated there were only the two of them at the meeting.

Mr Dooley stated they have the correct authorisation to do gas suppression systems as a company, but he stated the Complainant never confirmed his competence on gas suppression systems. He stated they expected the Complainant had competence or else the engineer would have said he couldn’t do it and they expected he would have said that.

Mr Dooley stated he doesn’t recall being asked by the Complainant for training on the system.

Mr Dooley stated there was no negative consequences to the company due to the incident.  He stated it was the customer who was at a loss and stated it is expected the facilities company or insurance company would cover it. 

The representative for the company stated no disciplinary procedure occurred but the termination was due to the incident at when he left work, he also went shopping as he thought it was half day the day they finished before Xmas.  Mr Dooley stated it was a telephone call and the Complainant has no record of it.  The Complainant apologised for it.

Mr Dooley stated he wasn’t sure if they had one meeting on Mr Grygier’s performance with him.

Mr Dooley stated probation was 6 months in the contract and he was successful.

Mr Dooley stated he didn’t raise any issue with the Complainant, and he said he didn’t discuss performance but his performance was unacceptable.

The Complainant commenced employment on 12 January 2022.  The date the employment ended is in dispute.  The Complainants last day of work was 9 January 2023, and the Complainant was paid notice up to the 7 February 2023.

The Complainant stated he got a new job on 14 February 2023, and it paid him similar wages.

I must first consider the date of dismissal in this case because under the Unfair Dismissals Acts (the “Acts”) the Complainant to be eligible to take a claim must have 12 months continuous service, to do so.

Earlier decisions determined that the date of dismissal was the date on which the notice would have expired. In Kinzinger v Marketo Emea Limited [2016] 6 JIEC 2801 there was a clause in the contract of employment which stated that once the employer exercised its right to pay the employee in lieu of notice, the employment terminated immediately, and the employee was not entitled to any further benefits. Therefore, the Tribunal held that the date of dismissal included contractual notice and the employee had the requisite service to bring an unfair dismissal claim under the Acts.

In An Employee v A Technology Company [2018] (ADJ-00010670) the WRC held that the notice period was quantifiable for the purposes of the service required under the Acts. Therefore, the employee had the requisite service to pursue her claim.

More recently the date of dismissal was considered by the Labour Court in Action Health Enterprises Ltd v Michael D’Arcy ADJ-00014891. This case addressed the issue that where it had been agreed to make a payment in lieu of notice, then the date of dismissal will be the date on which notice is given. A clause to this effect is usually included in the contract of employment. However, having carefully considering that case, the facts are different in this specific case before me.  Therefore, I find the employee has the prese quite 12 months service to take their claim.

I am now going to consider the allegation of Unfair Dismissal in line with Section 6(1) of the Unfair Dismissals Act 1977 which provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. Section 6(4)(a) of the 1977 Act provides that;

“…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 …the capability, competence of qualifications of the employee for performing work of the kind he was employed by the employer to do.”

A number of judgements were considered by the Adjudicator in arriving at my decision. Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as follows:

“it is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at the time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.”

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations (and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969) as follows:

“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases considering the bar that constitutes gross misconduct and dismissal is a high one.

Bunyan v United Dominions Trust (1982) ILRM 404 states “the fairness or unfairness of a 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”.

It is also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her “submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” I note that “Procedural defects will not make a dismissal automatically unfair as 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. I will consider this also.

The Respondent submits that the Complainant was not unfairly dismissed but was in fact fairly dismissed for reason of his underperformance in accordance with Section 6(4) of the Unfair Dismissals legislation which states 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 qualifications of the employee for performing work of the kind which he was employed by the employer to do.

No investigation or any disciplinary process were conducted in accordance SI 146 of 2000. The Complainant was not given the opportunity to state his case. The Complainant was not afforded the right to representation in light of all of the above, I find the dismissal of the Complainant to be procedurally unfair in all respect because based on all the evidence presented little or no process occurred in relation to this employee’s dismissal. Therefore, I find that this was an unfair dismissal and the Complainants case is upheld and succeeds.

No doubt there were alleged performance issues, however, they were not addressed procedurally fairly to give the employee a fair opportunity to defend these allegations therefore, I find that the Respondent did not act within “the bands of reasonableness” in this case and the claim for unfair dismissal is well founded based on the evidence presented and is not in line with what a reasonable employer in the same position and circumstances would have done or should have done in line with their legal obligations as an employer.

The claim is well founded based on the evidence provided. At the hearing, the complainant said that he found employment a week after his notice pay expired on a higher rate of pay.

Considering all of the evidence presented related to this claim and the Complainants loss I decide that the Respondent is to pay compensation of €1,000 to the Complainant.