Worker

Employer

Anonymised Parties

A General Operative

A Builder’s Providers

Representatives

Self-Represented

Ciaran Loughran of IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000458

08/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000459

08/07/2022

The Worker alleged Unfair Dismissal and failure by the Employer to properly use the Bullying and Harassment procedures in the Company.

The Employment began on the 4th March 2019 and ended on the 27th January 2022.

The rate of pay was, on appointment, € 28,532 per annum.

The Worker represented himself and gave an Oral Testimony supported by some employment documentation and the WRC complaint Form.

1:1          SC – 00000458 & CA-00051671-001 – Unfair Dismissal

The Worker was involved in a number of incidents with the Site Manager, Mr X, the HR person, Mr Y and Manager, Mr Z. He was issued with a Verbal Warning on or about the 23rd April 2021. He refused to accept the Warning as he felt it was related to a Workplace accident. Following from this he felt that the Site Manager was continually “on his case” with the CCTV. He was effectively being Bullied and Harassed by the Managers. General staff permission to take home scrap wood and units being dumped as waste became an issue between himself and the Managers. He had always gotten the permission of his Yard Foreman, but this seemed to have been glossed over.

On or about the 17th November 2021 he was called to the Office and shown a CCTV video of a Customer effectively leaving the Yard with a load of bricks that he had not paid for. The date of this incident was stated by the Worker to, have been the 13th November 2021. The Worker had loaded the Bricks on to the Customer vehicle. Proper sales documentation procedures had not been followed.

The Employer pointed to the video as suggesting that the Worker had received something from the Customer and put it into his pocket. The Worker was suspended on pay from the 17th November 2021. An Investigation meeting followed on the 3rd December 2021. A Disciplinary hearing took place on the 11th January 2022 following which the Worker was dismissed on the 27th January 2022 for Gross Misconduct.

In his evidence the Worker argued strongly that the incident of the missing bricks was completely overblown by the Managers. It was a common work practice for Yard Personnel to occasionally release stock, load vehicles etc without Sales Dockets. He had learned this from all his Work Colleagues.  Customers, generally, always went back to the Office to get their paperwork. He was being unfairly singled out. He agreed that he knew the correct procedures but day to day practice among Operatives in the Yard was more flexible. He had been singled out, over one incident, because the local Mangers had it “in for him”.

In any event the Yard had a Security Barrier, and the Security Officer was very remiss in not challenging the Customer Vehicle.

He did not Appeal the Dismissal as he felt that it would be a Waste of Time considering the very negative and vindictive agenda the Managers were taking towards him.

He had not requested SIPTU to assist him as he felt that none of his colleagues would want to be seen acting against the local Managers.

1:2          SC – 00000459 & CA-00051671-002 – Bullying and Harassment

The Worker had a Workplace accident in March 2021 which resulted in his being off work for some three to four weeks. He was called to a disciplinary meeting on his return to work and effectively accused of being responsible for the Accident. He refused to accept this. From that date he was subjected to constant hassle from the Managers who continually watched him on the CCTV System.  He was subjected to a rigid enforcement of the Rules unlike most of his other colleagues. He was effectively being Bullied and Harassed.

The Employer gave an oral testimony and submitted a detailed written submission. The principal spokesperson was Mr Loughran of IBEC.

2:1          SC – 00000458 & CA-00051671-001 – Unfair Dismissal

The key issue identified by Mr Loughran was the incident on or about the 13th and follow up meeting on the 17th November 2021.

The Customer had driven out of the Yard with a considerable number of bricks for which he had not paid. The Worker had loaded the vehicle without any proper paperwork and could not explain what it was he appeared to have put into his pocket at that time. His explanations did not stand up to reasonable questioning. A full investigation had taken place and every opportunity to state his case had been given. He was offered full representation rights but had declined. It was a fully Unionised (SIPTU) site.

 In his explanation he stated that he clearly knew the Correct Sales and Yard Procedures. He maintained that he had simply followed normal, informal , Yard procedures which were considerably slacker than Managers might like to maintain. The Management in both the Investigation and Disciplinary stages attempted to establish this fact but were unsuccessful. As far as was possible to ascertain , all Yard Staff followed correct procedures.

The decision to Dismiss was due to the gravity of the offence and the completely unrepentant attitude of the Worker in refusing to accept that he had done anything wrong.

The Dismissal letter on the 27th January 2022 referred to “the severity of your actions and lack of remorse or accountability for your actions”.

The Dismissal decision was not taken lightly but the Employer was strongly of the view that the fundamental relationship between the Employer and the Worker had broken own to such an extent and that Dismissal was the only option. It was reasonable position for an Employer to adopt. It was well “within the band of reasonableness” as set out in numerous precedent cases. Looney &Co Ltd V Looney, UD 843/1884 was cited in support.

In addition, the Worker had not fully utilised Internal procedures and had not submitted an Appeal as provided for in the Procedures. The Employer submitted as evidence a comprehensive suite of Procedures in this area.

The Employer pointed to SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedure. All proper steps had been followed in keeping with the Code. All correspondence was correct, and all facilities had been offered to the Worker.

Case law was cited in support of the procedural arguments.  A Driver v a Warehouse & Delivery Company [Adj14061]

In summary Dismissal had been a reasonable but regrettable Employer decision and supported by fair and proper procedures at all stages.

2:2          SC – 00000459 & CA-00051671-002 – Bullying and Harassment

The Employer has a comprehensive Bullying and Harassment suite of policies. They were exhibited to the Hearing. The first essential step is for the Worker to raise a complaint at local level or higher if appropriate. The Worker in this case never raised any complaint of Bullying or Harassment during his employment. This makes his claim post ending of employment difficult to sustain.

The Employer cited extensive case law on this point.  Part Time Teaching Assistant v A University ADJ-00006488 and Sales Manager v A Large Company ADJ- 00006959 were cited to support the Procedural points.

In summary the Worker never raised any issues during his employment and cannot realistically do so now, long post the employment.

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

3:1      SC – 00000458 & CA-00051671-001 – Unfair Dismissal / General discussions.

Choice of Legislation / Time Limits

The Worker, despite being offered the opportunity to have Representation, in a large well know Irish Owned fully Unionised Employer, chose to represent himself. The Worker, while genuine and heartfelt in his Oral testimony appeared to have a serious deficit in his knowledge of basic Labour Law. On questioning by the Adjudication Officer as to why he had not, apparently availed of a body such as the Citizens Advice Service, if he was unhappy to use SIPTU, his answers were unclear.

This lack of basic knowledge led to a number of weaknesses in his case. The first and most important was the reference to the WRC of the case under the Industrial Relations Act,1969 instead of the Unfair Dismissals Act,1977. The Worker had the qualifying service for the 1977 Act. At the date of the Hearing (05/04/2024) any reference to the WRC of a second claim under the 1977 Act for a Dismissal on the 27th January 2022 would have been hopelessly out of time and disbarred.

3:2      Use of Procedures

The Employer was rigorous in its use of proper procedures – SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedure was properly observed.

The Worker despite being advised to in the Employer correspondence, choose not to Appeal his Dismissal.

There is sufficient Labour Court case law to support the contention that a Worker should fully avail of all Employer procedures in pursuing his case unless there are very substantive mitigation factors at play. The case of Allen v Independent NewspapersIR[2002] ELR 84 is often quoted here. In this case there were no obvious mitigation factors.

The Worker believed that the local Managers had him “in their sights” and an Appeal would have achieved nothing. This was a Worker presumption as the Appeal would have been conducted by a different level of Management uninvolved in the case up to that point.  However, the Adjudication officer noted that all procedure up to that point had been in keeping with SI 146 of 2000 and there is no reason to doubt that the Appeal Stage would have been any different.

Regarding the Dismissal decision and the incidents involving the load of allegedly unpaid for bricks the question of the “Band of Reasonableness” arises. The Adjudication office is well aware of the Legal precents and cautions regarding substituting himself for a “Reasonable Employers” view.

The Worker alleged that “looseness” in document procedures was an occasional, if not frequent, event with his colleagues. There was no wilful attempt to defraud the Employer but a “busy Yard is a busy Yard” and in most instances there is no loss of revenue to the Employer. Despite the Looseness it was stated by the Worker that there was no practice of taking “backhanders” from certain customers to facilitate loss of product. The fact that he was accused based on CCTV of possibly taking a “backhander” was very upsetting for him. A Representative from a Union such as SIPTU would have been of some assistance in this matter.

In the Investigation and Disciplinary evidence, the Managers involved attempted to investigate these allegations with some colleagues. Naturally, no other employee chooses to “self-incriminate” in support of the Worker here.

The Worker had a history of looseness with the rules regarding taking scrap product again probably unintentional. He agreed that he knew the Documentation rule and had let it slip on the day of the bricks load.

The Management Testimony tended to the view that the Worker, no matter what, was never going to win an Employee of the Month award. There was a litany of minor incidents with basic Yard Procedures and a disputed Safety Incident with the Forklift.

Furthermore, his Unrepentant attitude to Breaches of Rules certainly did not engender him to Managers.

In summary the Adjudication view is that the Worker was largely the author of his own misfortunes and compounded this by not lodging an Appeal and seeking Trade Union or other Advice.

None the less the references to his Unrepentant Attitude / “lack of remorse” in the Dismissal letter as being key factors in leading to a Gross Misconduct dismissal was excessive. Management took this, it appeared, to establish that “Trust” had broken down. Legal precedents here would not tend to rely on Remorse or Lack of as good dismissal grounds.

The main issue was that while undoubtably the Worker was a headache to the local Managers the Dismissal based on One Incident “The Bricks” was excessive considering other Disciplinary options available in the Procedures.

In summary therefore the Recommendation is that the Dismissal was Unfair based on the Ground of Reasonableness especially as it was largely based on a single incident with the load of Bricks.

However, in view of all the circumstances and the overall context and history only a small amount of compensation is to be recommended – a sum of € 500 – approximately one week’s pay.

3:3        SC – 00000459 & CA-00051671-002 – Bullying and Harassment

The Employer has a well-developed suite of Procedures in this area. No recourse to procedure was made by the Worker to utilise these procedures during his employment. Accordingly, a case cannot now stand on any good grounds. This Dispute is set aside as unsuccessful.

Reasonableness, Dismissal, Bullying and Harassment.