ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044239

Parties:

Complaints:

Date of Adjudication Hearing:  24/06/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,  and Section 12 of the Minimum Notice & Terms of Employment Act 1973following the referral of the complaints to me by the Director General, I inquired into the complaints  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complaint is that the Complainant was unfairly dismissed without due process.  The complaint under Minimum Notice was withdrawn at hearing.

Summary of Respondent’s Case:

The complaint by Mr Kieran Keoghan is under the Unfair Dismissals Act 1977 and the Minimum Notice and Terms of Employment Act 1973.

The fact of dismissal is not in dispute. Section 6(4)(b) of the Unfair Dismissals Acts (1977 - 2015) states:

“…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:

(b) the conduct of the employee…”

It is the position of Linlathen Ltd that Mr Keoghan was dismissed as a direct result of his behaviours towards customers the owner of the business, Mr John Harris.

Mr Keoghan commenced employment as a Fitter on 13 January 2020. He worked 39 hour per week and was paid €445 (gross) plus €75 expenses per week at the time of his dismissal.

Mr Keoghan was dismissed by reason of his own actions. Accordingly, his dismissal was not unfair as it resulted wholly from “the conduct of the employee”, in accordance with section 6(4)(b) of the Unfair Dismissals Act 1977-2015.

There had been numerous occasions when Mr Harris had to raise issues, concerns and complaints with Mr Keoghan regarding his inappropriate behaviour towards him, his colleagues, management and customers. For example, on 23 August 2023, Mr Harris discussed the way Mr Keoghan had not been courteous towards a client. At that meeting, Mr Keoghan admitted he had abused the client. The following day, on 24 August 2023, Mr Keoghan had been abusive towards Mr Harris due to an issue where he (Mr Keoghan) had incorrectly measured windows and was fitting them despite the customer complaining about the discrepancy. Due to these issues, Mr Harris attended another site where work was being carried out on 26 August 2023. During this visit he noticed there were issues regarding the fitting of some windows. He brought this to the attention of Mr Keoghan who became very abusive towards Mr Harris, so much so that Mr Harris feared for his personal safety and had to leave the site.

An incident occurred on 7 December 2022. There were three staff working on a site due to the large windows being installed. During the installation of a second window, Mr Keoghan failed to support his colleagues, leading to the window slipping and landing on the foot of one of his colleagues. Not only was the employee injured, the window that was being installed was also damaged.

Behaviours displayed by Mr Keoghan towards customers would have a detrimental impact on a small business like Linlathen Ltd. Positive word of mouth has a huge beneficial impact on any small business. Similarly, negative word of mouth can have a significant adverse impact on such a business.

Mr Harris met with Mr Keoghan on 9 December 2022 to discuss the incident that occurred two days earlier. Mr Keoghan was accompanied by a colleague. Having considered all the facts, the responses and explanations of Mr Keoghan were not considered reasonable nor sufficient such as to mitigate the extreme seriousness of his actions. Mr Keoghan’s actions left Mr Harris, a small business owner, with no alternative but to terminate Mr Keoghan’s employment with immediate effect. Mr Keoghan was paid for all hours worked that were due to him, one weeks outstanding holiday pay as well as two weeks in lieu of notice.

Without prejudice to the foregoing, should the Adjudicator find in favour of Mr Keoghan, Linlathen Ltd contends that the actions of Mr Keoghan contributed wholly to his dismissal. Accordingly, it is the Company’s position that he is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions.

Evidence on affirmation was given by fellow employee Mr A.   He stated that he was 3 years in the employment, fitting windows and doors.  He did not like working with the Complainant as he was always making accusations against others and criticising the Respondent.  He described the incident which took place on 7 December 2022 in which he said that the Complainant was not willing to help his colleagues resulting in a window falling on the witness’s foot. 

Evidence on affirmation was given by the Respondent.  He stated that he was in the business in one form or another for 45 years.  He had difficulties with the Complainant  who had been good at his job in the beginning but his attitude and approach had been problematic in the latter end of his employment.  He wouldn’t take advice, he was not courteous to clients and customers complained they unhappy with his performance.  When the Respondent brought this up with him, he became very aggressive.  The Respondent described the Complainant as a ‘bully’, constantly setting colleagues up against each other and in the end no one wanted to work with him except one other employee.  The Company’s name and reputation was being put in danger.

He confirmed that he dismissed the Complainant after meeting with him to discuss an incident in one particular site, where the Complainant’s fellow employee ‘nearly lost his foot’, due to a window dropping on him. 

The Respondent agreed he was ‘old school’.  He believed in respecting employees and they should respect him. 

Minimum Notice

Mr Keoghan commenced employment on 13 January 2020 and was terminated on 9 December 2022. In all, he had less than three years service.

The Minimum Notice and Terms of Employment Acts 1973 to 2005 states, at Section 4(2):

“The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks”

By letter dated 9 December 2022, Mr Keoghan was paid any monies owing to him, totalling €1,920. This included “…2 weeks Pay in Lieu of Notice”

Conclusion

Mr Keoghan’s behaviour towards his colleagues and customers was appalling. He was abusive and disrespectful, traits that could be detrimental to a small company like Harris Windows. While a number of discussions had taken place between the parties, the events of 7 December 2022, where a person was injured, ultimately led to Mr Keoghan being dismissed.

Linlathen Ltd contends that the actions of Mr Keoghan contributed fully to his dismissal. It is the Company’s position that Mr Linlathen is not entitled to seek any redress under the Unfair Dismissals Acts 1977-2015. It is the Company’s position that Mr Keoghan received his full entitlements under the Minimum Notice and Terms of Employment Acts 1973 to 2005 of two weeks pay in lieu of notice and is not entitled to seek any further redress.

Summary of Complainant’s Case:

The complaint regarding minimum notice is withdrawn.

The Complainant worked as a Fitter from January 2020 to 9 December 2022 when he was dismissed without fair procedures or due process which is set out in S.I. 146/2000.

The Complainant had an informal discussion with his employer on 9 December 2022.  The employer told him there had been a complaint about him from a fellow employee.  This was said to him informally, as he was collecting his wages.  The Complainant thought this was the end of the matter, having just been advised of it verbally.  Later on in his shift, the Complainant texted the employer to say he was taking a complaint against the fellow employee.  The employer texted the Complainant to tell him he was dismissed.   

It is submitted that the manner of the dismissal was against all natural justice and fair procedure.  The Complainant was never given a copy of the complaint against him.  He was not notified that the meeting was a disciplinary one and that it may result in his dismissal.  He was never given a copy of any disciplinary procedures or made aware of the existence of same.

The Complainant’s Union wrote to the employer seeking his re-instatement and stating that the Complainant believed the allegations made against him to be untrue.  He had his own witness present at the discussion on 9 December 2022 who corroborated his version of events.

The employer never replied to the correspondence.

It is argued that Section 6 of the Unfair Dismissals Act 1977 provides that a dismissal shall be deemed to be an unfair dismissal unless there were substantial grounds for the dismissal.                        It is argued that the Respondent’s decision to dismiss did not fall within the bounds of reasonableness.  The Employer did not conduct an investigation, therefore could not substantiate the allegation.

It is argued that the Respondent ought to have utilised the practice advised in S.I. 146/2000, as a reasonable employer would do.

Case law was cited in support of the arguments that the Complainant was unfairly dismissed without due process or fair procedures.

The Complainant gave sworn evidence.  He refuted the allegations made by his fellow employee and stated that the facts as outlined by him were wrong. 

Findings and Conclusions:

CA-00054885-001         Unfair Dismissals Act 1977

The Complainant was dismissed following an incident at work where a fellow employee alleged he was negligent and this resulted in a window being dropped.  The Respondent also had a number of customer complaints and was unhappy with the Complainant’s performance and attitude.  There was a conflict of evidence regarding the actual incident which gave rise to the dismissal.  Had the Respondent convened a proper investigation, that would have given all parties involved the right to be heard.   The evidence of the Respondent was clearly that he had ‘had enough’ of the Complainant and felt he had to dismiss him.    

In deciding if the dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant, but rather consider whether the Respondent acted reasonably in the matter of the dismissal.  The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that

“It is not for the Tribunal to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did..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 would have done in the same position..”

In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to 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”.

In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:

“The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In this instant case, I base my findings and conclusions on three key questions

 (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation?,

(2) Was there a fair investigation? and

(3) was the penalty proportionate? 

As is evident from the evidence and submissions, the answer to these questions is a clear no.

I find the Complainant was dismissed without any procedure or due process being followed and that dismissal was unfair.   I find the complaint of unfair dismissal to be well founded.  I consider the appropriate remedy to be compensation as re-employment or re-instatement are not appropriate in the circumstances.  I have taken into consideration the Complainant’s contribution to the situation and scant evidence of attempts by him in relation to mitigation of loss. I require the Respondent to pay to the Complainant the sum of €4,800 compensation.

CA-00054885-002            Minimum Notice & Terms of Employment Act 1973

This complaint was withdrawn at hearing.

Decision:

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

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.

CA-00054885-001            I have decided that the complaint under the Unfair Dismissals Act is well founded and I require the Respondent to pay to the Complainant the sum of €4,800 compensation

CA-00054885-002            The complaint was withdrawn at hearing.

Dated: 05/09/2024 

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: