Complainant

Respondent

Parties

Keith  Hackett

Heineken Ireland Ltd

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Deirdre Canty SIPTU

Cian Cotter BL instructed by Shane Crossan O’Flynn Exhams LLP

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-00054107-001

12/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054107-002 DUPLICATION

12/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054107-003

12/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054107-004

12/12/2022

The Complainant was employed as a Brewery Operator with the Respondent  from 24 October 2005 to 6 October 2022. His employment was terminated by summary dismissal for gross misconduct by letter dated 5 October 2022. At the time of his dismissal, he was paid a weekly remuneration of €1381 gross; net €895.92 for 39 hours per week. The gross misconduct alleged by the Respondent had two aspects: (1) The alleged  dissemination of highly confidential and commercially sensitive documents, and (2) the breach of the Respondent’s Dignity at Work policy. The Respondent claims the dismissal was fair in all respects and satisfied the provisions of the Unfair Dismissals 1977, as amended (“the 1977 Act”)

The Complainant's case is that he denied the conduct alleged by the Respondent. He furthermore submits the process that led to the decision to dismiss him did not meet the standard for fair procedures and was otherwise disproportionate under the 1977 Act.

The Complainant submits that he did not receive his minimum notice under the Minimum Notice and Terms of employment Act 1973 (“the 1973 Act”). The Respondent refutes this claim on the basis that notice is not required under the 1973 Act when the reason for dismissal is gross misconduct.

The Complainant further submits that the Respondent denied him sick pay for a two-week period and that this was in breach of the Payment of Wages Act 1991 (“the 1991 Act”). The Respondent contends that the withholding of payment was in line with the contractual sick pay policy and therefore was not an unlawful deduction of wages properly payable under the 1991 Act.

 CA-00054107-001-UNFAIR DISMISSAL.

Two brewery operators, Mr A and Mr B, lodged complaints against the Complainant for bullying and harassment. Mr A’s allegations were that he had  been blamed for errors, he was  undermined, and he was  subject to derogatory remarks. Mr B alleged that the Complainant derided his abilities, accused him unfairly of certain  behaviours, insulted him and refused to assist him.

Mr Terence Collins, Senior Manager,  was initially appointed to investigate the matter but was later replaced by Michael Hegarty, an external investigator , due to concerns about impartiality. The investigation terms were initially set on 16 February 2022 and expanded on 1 March 2022 to include derogatory comments about female colleagues.

Michael Hegarty issued three separate reports. The investigation concluded with a letter from the Respondent  on 1 September 2022, confirming the allegations and noting breaches of company policies.

Data Breach Investigation:

During the investigation, it was discovered that the Complainant had sent confidential  data, belonging to the Respondent,  to his personal email. This included  brewing processes, safety control reports, and other sensitive documents. Ms Sarah Daly BL  was appointed to investigate this matter. It was confirmed that the Complainant had shared confidential material from 2015 to 2018. The Respondent concluded that this  posed significant risks to the Respondent's operations and security.

Disciplinary Process and Appeal:

A disciplinary hearing was held on 13 September 2022. The Complainant was allowed representation throughout the investigation and the disciplinary process. The Complainant was dismissed on 5 October 2022 for gross misconduct due to the data breach and breaches of the Dignity at Work Policy. A final written warning was issued for the derogatory comments he made about women.

The Complainant appealed the dismissal on 20 October 2022, citing his long unblemished employment  history with the company. The appeal was rejected by the Respondent’s Appeals Committee on 28 November 2022.

Evidence of Michael Hegarty, External Investigator:

The witness gave  evidence that he had been a solicitor for 43 years and considered himself to be very experienced in matters of employment law. His investigation report and conclusions were exhibited.  He took over the investigation  from Terence Collins. He described how the  Terms of Reference,  described in  his brief, were to determine on the balance of probabilities, whether the behaviours complained of by Mr A and Mr B occurred. He found that in the main this was the case.

 The Terms of Reference were expanded further when further allegations were made against the Complainant. This led to an extension of the Terms of Reference to include a separate investigation.

The witness said that he brought a potential serious breach of confidential data to the attention of the Respondent when the Complainant during the course of the investigation showed him some graphs of production processes. This matter  was investigated separately  by Ms Sarah Daly BL.

In cross examination the witness accepted that he was not in complete ownership of the investigation because he picked up the file and notes of Mr Terence Collins and carried  on from that point. He accepted that the original transcripts of interviews were not kept and therefore not copied to the Complainant. He acknowledged that Mr Collins would not be seen to be impartial due to the circumstances of an earlier investigation.  The witness  acknowledged in further questioning that  it was not his brief to determine whether the Complainant behaved in breach of the Dignity at Work policy and engaged in bullying/ harassment as defined in that policy, but rather to determine if the specific behaviours complained of occurred.

Evidence of Ms Sarah Daly BL:

The witness gave evidence that she was requested to carry out an investigation as to whether the Complainant had acted in breach of the Respondent’s IT internet/email policy. The matters under investigation related to emails which were sent from the Complainant’s company email address to his own personal email account. The witness exhibited her report and conclusions. She explained that the Complainant was represented at all stages of her investigation by his union representative, was copied on all relevant documentation and was allowed to directly cross-examine witnesses. The witness accepted in cross-examination that she was satisfied that it was never the intention of the Complainant to share or otherwise circulate the documents in question. The witness acknowledged  that she did not issue findings in respect of the allegation.

Evidence of Mr Alfonso Aunon Garcia – HR Director.

The witness gave evidence that the HR team decided that the findings of both investigations warranted disciplinary action.  Testimony was given by the witness in verification of the documentation pertaining to the disciplinary hearing and outcome. He said that in his 20-year career as a HR manager, the gross misconduct alleged was the worst he came across. He stated in cross-examination that he had factored the Complainant’s previous unblemished work record  into consideration when he made his ultimate decision to dismiss.  

Evidence of Mr Conor Hyland- Financial Director

The witness said he took no part in the investigation, nor did his colleague Ms Avril Collins, Corporate Affairs Director, who both heard the appeal. He said they both reviewed the reports and associated documentation. They read an extensive submission from the Complainant and took part in an appeal hearing that lasted 2 hours. He said initially both had different views but after intensive discussion both came to a consensus that they upheld the decision to dismiss.

Legal Argument:  

Under the 1977 Act, a dismissal is presumed to be unfair unless substantial grounds justify it (Section 6(1)). Certain reasons, such as employee capability, conduct, redundancy, or legal restrictions, can render a dismissal fair (Section 6(4)).

The Respondent  argues that the dismissal was justified based on the employee's conduct (Section 6(4)(b)). The High Court in Power v Binchy (1929) 64 ILTR 35 supports the notion that dismissal must be due to significant misconduct constituting a repudiation of the contract. Similarly, Glover v BLN Limited (1973) IR 388 confirms misconduct as a valid reason for summary dismissal.

In A General Operative v A Beef Processor (ADJ 00007571), the Workplace Relations Commission emphasised that it is not for the adjudicator to determine guilt but to assess whether substantial grounds justify the dismissal and if fair procedures were followed. Likewise, Bank of Ireland v O'Reilly [2015] IEHC 241 held that the employer must show substantial grounds for dismissal, judged against the reasonable actions of an employer.

The Respondent cites the  Employment Appeals Tribunal (EAT) in Hennessy v Read & Write Shop Ltd (UD 192/1978)  where it established that reasonableness should be assessed in the employer's inquiry and conclusion. The Respondent further cites  O'Riordan v Great Southern Hotels (UD 1469/2003), where the EAT ruled that the employer's genuine belief in the employee's wrongdoing, based on a fair investigation, is key.

The Respondent submits the  EAT also discussed proportionality in Mullane v Honeywell (UD 111/2008), requiring a balance of probabilities and proportional responses. The Respondent cites the  Supreme Court in Connolly v McConnell [1983] I.R. 172 and the High Court in Flanagan v University College Dublin [1988] IR 724 where it emphasised the necessity of informing employees of allegations and allowing them to respond.

The Respondent cites  Mooney v An Post [1998] 4 IR 288, to show that fair procedures include informing the employee of the charges and allowing a defence. The Respondent submits that the High Court in  Giblin v Irish Life & Permanent PLC [2010] IEHC 36 reiterated the importance of adhering to fair procedures, tailored to the employment terms and circumstances. The Respondent further refers to the High Court in  Joyce v Colaiste Iognáid [2015] IEHC 809 where the Court  equated natural justice with the opportunity to respond to allegations.

In conclusion the Respondent argues Section 6(4) of the Unfair Dismissals Act 1977 states that a dismissal is not unfair if it is based on the employee's conduct. The Respondent  conducted  comprehensive investigations led by external investigators and involving senior staff and extensive support personnel. These investigations concluded that the Complainant’s behaviour, including mistreatment of colleagues and mishandling of confidential information, warranted dismissal. The Complainant did not acknowledge the impact of his actions, which led some colleagues to consider resignation due to panic attacks, nor did he reflect on the seriousness of his data breach. His defensive stance and denial of allegations, without showing accountability or remorse, left the Respondent with no choice but to dismiss him to protect other employees and ensure data security.

The Respondent submits in closing  that the summary dismissal of the Complainant was fair, reasonable, and proportionate. The steps taken leading up to the dismissal were thorough and the Complainant was offered every reasonable opportunity to defend against the allegations.

 CA-00054107-003: 1991 ACT PAYMENT OF WAGES COMPLAINT:

The Respondent exhibited the Company sick pay policy where full discretion is allowed and, furthermore, where there is no obligation to pay sick pay during a disciplinary process. The Respondent also submits that where there is a different of opinion between the Respondent GP and the Complainant GP, then the Respondent is entitled to rely upon the opinion of the Respondent GP. No such opinion on the relevant medical condition of the Complainant was forwarded to dispute the opinion of the Respondent GP that the Complainant was fit to work at the material  time.  

 CA-00054107-001 UNFAIR DISMISSAL.

The Complainant described the brewhouse where he worked as being “a man’s world” where banter and colourful language was the norm between the male workmates. He said he encountered problems training new workmates to the area when he also had to look after three processes. He was particularly under pressure because two colleagues in particular, A and B were not “picking up in training”. He described the atmosphere at the workstation as being “toxic”.  He said that when he brought this to the attention of his supervisor he was told “You’re doing the bollocks, you’re the senior man”. He said that the pressure became too much for him so he asked management whether he could be moved off the shift. This request was refused. He said he then put it to management that he would take a €500 drop  in wages and move to the yard. This was also refused, and neither was he given access to a redundancy package that had recently been floated. He was told that the closing date had passed. He went out sick with stress. He  described a meeting he had with a HR manager  where three options were put to him when returning to work of (1) coming back to work with a clean slate and attempt to manage the training and the banter (2) Stay out sick long term or (3) Leave the company with no package.

On 16 February 2022 the Complainant was called in to the office to meet with HR people. He was told that he did not need representation. However, he was shocked to discover that bullying complaints had been made against him by Mr A and B. He was suspended from work and escorted off the premises by a supervisor. He was not given copies of the complaints at the time but rather  received them over three weeks later. He described his experiences during the investigation process where he said he  refuted the allegations that he was a bully but instead told the Respondent  that interaction with colleagues was part of the banter in the work area. He said that he could not adequately defend himself because he did not have access to his work computer. He described the training process to the investigator Mr Hegarty, using illustrations of graphs he had in his possession where mistakes were made by Mr A and Mr B. He said this disclosure, which he considered not to be a data breach nor a breach of confidential company data, was used to open a fresh disciplinary  investigation of his behaviour.

The Complainant in cross-examination accepted that he never raised the banter nor toxic environment in any formal grievance, nor did he raise the issue of access to his computer with Mr Hegarty during the investigation. He accepted that when notes and minutes of meetings were sent to his representatives, he did not avail of opportunities to amend  these documents as he saw fit. He accepted also that he did not avail of an arrangement of cross-examination whereby he could pose questions to witnesses that could be responded to by him,  through the agency of the investigator.   He put the lack of response down to the fact that this union  representatives were either or sick leave or on annual leave. He accepted that the inappropriate comments towards female colleagues were unacceptable and deemed them to merit an investigation. On the retention of confidential documents, he accepted that it would have been a serious breach of policy  had they been disclosed externally. It was put to the Complainant that he expressed no remorse for his actions, but the Complainant stated that he did not believe he was guilty of misconduct in the way that it was framed.

Complainant Submission:

The Complainant asserts that his dismissal was unfair because the process leading to the decision did not adhere to the standards of fair procedure established by case law. The Complainant  has demonstrated that the dismissal was unfair as the Respondent cannot substantiate that it was either substantively or procedurally fair. The overall effect of the aforementioned points confirms that the Respondent's decision to dismiss the complainant was unreasonable under the circumstances. The  Complainant submits he faced obfuscation, lack of transparency, and a power imbalance  which was exercised arbitrarily against him.

The Law

The Complainant submits that the Respondent acted unreasonably in breach of section 6(7) of the 1977 Act. The Complainant contends that fundamentals of natural justice were ignored by Mr Hegarty including the right to face one’s accuser, to cross-examine witnesses, to be provided with all documentation secured during the investigation and the right of reply to the investigation report. The Complainant relied on a number of cases to support the argument:

In re Haughey [1971] IR 217 the Supreme Court in re Hughey [1971) IR 217 held that the complainant's procedural rights were violated as he was not afforded the rights elucidated above.   

In Pacelli v Irish Distillers Ltd (2004) ELR 25, the EAT stated that "any investigation should have regard to all the facts, issues, and circumstances."

The Complainant submits the  Terms of Reference for the investigations were changed by the Respondent prior to, and during the investigations, and were never agreed upon. The Complainant argues that the  Respondent's disciplinary policy is silent on this matter; however, it is good practice to have documented and agreed Terms of Reference for an investigation, especially one that may lead to dismissal. Additionally, the Complainant contends,  the Respondent refused to acknowledge the history between the parties, citing  management's inadequate responses in 2021 when relationships in the brewhouse brought to their attention.

The Complainant argues that the High Court decision in  Michael Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272 has further strengthened fair procedures. This High Court Judicial review case determined that the principles of natural justice must be applied in disciplinary procedures. Mr. Lyons was at risk of considerable personal and reputational damage from serious internal employment-related allegations, similar to the Complainant. The High Court confirmed the right to cross-examination in a disciplinary process where an employee's job and/or reputation is at stake. Similar to this case, the Complainant argues he was never given the opportunity to cross-examine the two operators on their complaints, highlighting a procedural flaw.

The Complainant pointed to the Respondent's disciplinary policy where it  states:

"Copies of statements made by witnesses will be made available to the respondent and the complainant. Witnesses will be encouraged to appear at the complaint hearing if requested by either party."

The Complainant asserts that this serious omission of natural justice significantly disadvantaged the Complainant in defending his position, representing a major flaw in the Respondent's case.

The Complainant contends that there was  no consideration of alternative sanctions to dismissal. In the dismissal letter dated 5 October 2022, mere lip service was paid to alternatives to dismissal. In conclusion the Complainant argues that the dismissal was unfair in all its processes and an affront to natural justice.

CA-00054107-003 PAYMENT OF WAGES 1991 ACT COMPLAINT:

The Complainant submits that the non-payment of two weeks sick pay was an unlawful deduction under section 5 of the 1991 Act.

CA-00054107-004 MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT 1973:

The Complainant submits that he was not furnished with his statutory minimum notice contrary to the 1973 Act.

CA-00054107-001  UNFAIR DISMISSAL.

Section 6(7) of the 1977 Act provides:

"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 or the Labour Court, as the case may be, 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."

In O’Riordan v Great Southern Hotels UD1469/2003, the Employment Appeals Tribunal has provided a set of guiding principles that an Adjudication Officer must follow when determining whether the respondent reasonably concluded that the complainant was guilty of an Act of gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

The High Court has further echoed and reinforced this line of reasoning  in Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241, in which Noonan J remarked:

"Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned."

It clearly is not my role to determine whether the Complainant was guilty of the accusations  laid against him but instead to determine  whether the decision by the Respondent to dismiss him was based on a reasonable belief that fair procedures were employed and that the dismissal was proportionate in all the circumstances. I note that the Complainant was dismissed separately, on each of a count of gross misconduct, but for the purposes of my decision I deem it to be one count of dismissal.

Bullying and Harassment:

The Respondent argued that the procedures were fair during the investigation. I agree with this argument in that the Complainant was allowed representation, allowed to cross-examine witness through a third person and allowed to respond to transcripts and statements. However, the investigation was severely limited  to the extent that it  did not comply with the Respondent’s own Dignity at Work Policy (DWP). By its own account, the DWP states in relation to an investigation, in its relevant parts:

·       “When the investigation has been completed all the facts will be summarised and a decision will be made as to whether bullying and harassment took place (my emphasis)

·        …Upon competition of the investigation, the investigator(s) should submit a written report to the HR Department containing the findings of the investigation. A copy will be kept on file.

·       As a result of the investigation then disciplinary action may be taken (see disciplinary procedure).””

The investigator Mr Hegarty in evidence accepted that his brief was that “the scope of the Investigation will be to investigate the Complaints in order to determine, on the balance of probabilities, whether the behaviours complained of occurred (exhibited)”. This was the limit of his scope imposed by the Respondent,  which fundamentally fell short of  the requirement under the DWP to decide whether bullying and harassment took place.  As any investigator of bullying and harassment complaints would appreciate, an investigation into bullying in the workplace must consider the underlying culture that existed  because the norms and expectations within a given workplace can significantly impact the prevalence and nature of bullying behaviour. For example, the use of foul and profane language amongst colleagues, may be more accepted or even encouraged in certain industries or settings where a more casual or rough-and-tumble atmosphere is common. Unrebutted convincing evidence of such an atmosphere was given by the Complainant, including an example of  profane language from a supervisor which painted a picture  of  the accepted nature of  interactions in the brewhouse. Therefore, an investigation into bullying in the workplace must take into account the specific cultural context in which the behaviour occurred to determine whether it constituted bullying or harassment. From the evidence presented to me, I  am satisfied that investigator was not mandated by the Respondent to enquire whether there was a breach of the DWP but instead to establish neutral facts which were evidently devoid of context.

According to Mr. Garcia, the HR Director, it was his HR team that decided bullying and harassment had occurred, bypassing the core principle that requires separate investigation and disciplinary processes. This leap to the conclusion of bullying and harassment not only breached the Respondent’s  own procedures but also failed to consider the overall context of the rough-and-tumble work environment in the brewhouse. I am therefore convinced that the Respondent formed an unreasonable belief that a fair and thorough investigation, in accordance with its policies, was conducted when the plain fact of the matter was that a  fundamental limitation was imposed upon the investigator. I find that this constituted a fundamental breach of the requirement for an employer to engage in reasonable behaviour as required by section 6(7) of the 1977 Act.

Data Investigation:

Ms. Sarah Daly BL, the investigator of the alleged gross misconduct that led to the dismissal of the Complainant, described her role as determining whether the Complainant breached the Respondent's IT policy. The investigation focused on emails sent from the Respondent's company email address to the Complainant's personal email address. It was undisputed that Ms. Daly conducted a fair and thorough investigation. She concluded that the Complainant had sent confidential documents to his personal email but found no evidence of an intention to share this information with any third party. Importantly, in the final paragraph of her report, Ms. Daly stated, "I consider that it would be outside the scope of my role as investigator to state my views in respect of this allegation further. I do not intend to issue findings as to whether or not I consider that the allegation is upheld."

Mr. Garcia's disciplinary letter did not reference Ms. Daly's specific conclusion. Additionally, the Complainant admitted to removing hard copies of processes from the premises and taking them home. While the disciplinary and grievance procedure recommends an investigation to establish gross misconduct, it was Mr. Garcia who determined gross misconduct had occurred and decided to dismiss the Complainant. Similar to the previous investigation of bullying and harassment, the investigator's role was limited to uncovering facts neutrally rather than determining whether gross misconduct occurred. Ms. Daly's reluctance to issue findings under these limitations was significant. 

Mr. Garcia did not seem to consider Ms. Daly's categorical finding that the Complainant had no intention of sharing the documents. Instead, his findings were based on something which Mr Garcia surmised might occur, which I find on the balance of probabilities, was an improbable conclusion under the circumstances.  Furthermore, a reasonable employer would have considered the fact  that emails containing confidential information had previously been shared on personal email accounts by management without repercussions, and that the Complainant disclosed the possession of these documents to the Respondent in a manner which would indicate  a lack of malicious intent to any reasonable person.  After reviewing this element of alleged gross misconduct, I am satisfied there was no separate conclusive investigation of the behaviour which could be considered  independent of the person who ultimately made the decision, to dismiss the Complainant. Therefore, I conclude this decision was not within the range of reasonable responses of a reasonable employer as per the yardstick of the High Court in Reilly.

Having looked at both elements of the gross misconduct alleged  I conclude  that the Respondent breached the requirement to act reasonably in accordance with section 6(7) of the Act and I find that the Complainant was unfairly dismissed.

Redress. Redress for unfair dismissal is provided for under Section 7 where it provides:-  7.— (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 or the Labour Court, as the case may be, 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 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(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 said financial loss was attributable to an action, 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...

The Complainant’s weekly rate of pay was   €1,381, including  premiums for working shifts and weekends. He was  dismissed on 16 October 2022. The Complainant submits that from  16 October 2022 to 17 December 2022 he was in search of work and contends that documents he sent in attest to this fact. He asserts that the loss for this period is €12,249.00.  The Respondent argues that detail  is sparse for this period  and the only evidence of application is a screenshot of the website. The Respondent asserts that if the Adjudicator finds the dismissal unfair, the Complainant must fully prove his actual loss. Any compensation should take into account the Complainant's unreasonable behaviour, which violated the Respondent’s  policies. This principle has been upheld by the Employment Appeals Tribunal in cases such as Shiels v. Williams Transport Group (1984) UD/191/1984, where no redress was awarded despite unfair dismissal because the Complainant's possession and use of illegal drugs at work contributed 100% to his dismissal.

The Respondent cited  McClintock v. Health Service Executive UD/191/1984, where the tribunal found that although the employer's actions led to the Complainant's resignation, no compensation was awarded due to the specific facts of the case. Similarly, in Sheehan v. HM Keating & Sons Ltd [1993] ELR 12, the Complainant received no award other than minimum notice after being convicted of theft, as he fully contributed to his dismissal.

The Respondent cited  Sheehan v Continental Administration Co Ltd UD858/1999, where the Employment Appeals Tribunal stated:

“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.

The Respondent further cited  the Labour Court's decision in The Blue Door v Karl Fitzgerald UDD2126 held that "a dismissed employee should devote part of every single normal working day to finding alternative employment in order to mitigate their losses.” It is clear that the expectation with regard to mitigation of loss is to apply.

I am satisfied that the dearth of evidence put forward by the Complainant for the period 16 October 2022 to 17 December 2022 did not show an earnest approach to seeking employment.  Therefore, I am not including this period in the final assessment of appropriate redress.  The Complainant was employed by LA Barry Engineering Supplies from 17 December to 2022 to 3 March 2023. He secured employment with Lighthouse Drinks on 6 March 2023 and remains in that employment to date. The Complainant puts his loss at €90,000. However, this includes a discretionary yearly bonus X 2  which is based on performance. The Respondent convincingly put forward the case the bonus cannot be guaranteed from year to year: it is based on the achievement of both company and personal objectives.  Therefore, I am deducting €17,848 as well as the initial period between October and December, estimated at €12,249. Therefore, I find that his loss was €60,000 for the purposes of the calculation of redress, before contribution to dismissal is factored into the loss. 

I conclude also, after hearing all the evidence, that whilst I found that the dismissal was unfair, the Complainant did engage in unacceptable behaviour which should have warranted a serious disciplinary sanction short of dismissal.  This behaviour  contributed substantially to his dismissal which I estimate to be at the ratio of  70%. Therefore, I find that the adjusted relevant compensation to be €18,000.

CA-00054107-003 PAYMENT OF WAGES 1991 ACT COMPLAINT:

The  1991 Act provides:

S 5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless-

(a)    The deduction (or payment) is required or authorised to be made by virtue of any statute, or any instrument made under any statute,

(b)     The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)     In the case of a deduction, the employee has given his prior consent in writing to it.

It is well established that the payment of contractual sick pay falls  under the definition of wages as provided for  under the Act. The issue to be adjudicated upon here is whether the non-payment of the sick pay was allowed by contract, whereby the Respondent claims that  according to the terms of the scheme, full discretion is allowed and, furthermore, where there is no obligation to pay sick pay during a disciplinary process. The Respondent also submits that where there is a different of opinion between the Respondent GP and the Complainant GP, then the Respondent is entitled to rely upon the opinion of the Respondent GP. I am satisfied no such opinion difference was forwarded by the Complainant in this case. I also conclude that the Complainant was fully au fait with the sick pay scheme therefore the non-payment of sick pay during the disciplinary process was not an unlawful deduction. I find that the complaint was not well founded.

CA-00054107-004 MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT 1973:

As I have found that the Complainant was unfairly dismissed, it follows that his complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 must succeed and is well founded. Given that he had more than 15 years’ service, he  is entitled to eight weeks’ pay in lieu of notice.  As he  earned €1381 per week , I make an award of €11,048 in  respect of this complaint.

CA-00054107-001  UNFAIR DISMISSAL.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the reasons outlined above I find the Complainant was unfairly dismissed and I award him the compensatory sum of €18,000

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00054107-003 PAYMENT OF WAGES 1991 ACT COMPLAINT:

For the reasons outlined above, I find the complaint was not well founded.

CA-00054107-004 MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT 1973:

I find the complaint was well founded. I make an award of €11,048 in  respect of this complaint.

Unfair Dismissal, Gross Misconduct, Payment of Wages, Minimum Notice.