Complainant

Respondent

Parties

Peter  Maher

St Mary's Campus Limited

Representatives

William Maher BL instructed by  John M. Spencer Solicitors

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-00058944-001

20/09/2023

This complaint was that of the unfair dismissal of the Complainant by the Respondent.

The Complainant commenced working for the Respondent on a CE scheme (Community Employment) on the 16 November 2020.

The Complainant worked 19.5 hours per week /39 hours per fortnight and was paid €247 gross per week.

The Complainant’s hours of work were three full days one week between the hours of 8:45 AM and 5:15 PM and two full days the following week on the same hours.

The preferred redress the Complainant sought if I was to find in his favour was compensation.

The Complainant was the only witness who gave evidence on his part of the hearing.

He declined to cross-examine the witnesses for the Respondent and he said he was not legally trained.

He relied on the substantive written documentation that were submitted prior to the hearing. No direct evidence was given on the information contained in the written submissions by him apart from the evidence set out below.

The Complainant submitted that he had not received any verbal warning or written warning prior to his dismissal by text which confirmed the verbal notification of dismissal on 8 June 2023.  His evidence was that he was summarily dismissed at 12:50 approximately on 8 June 2023.

I was provided with copies of a series of texts between the CE supervisor and the Complainant and from 12:33 PM on 8 June 2023. One of these referred to the CE manager having the termination worked out with holidays and giving the Complainant his finish date.

The Complainant gave evidence that he was not given the right of appeal. He said that he didn't keep any paperwork and only had his contract of employment.

The Complainant sent a written letter setting out his position in relation to the events of 8 June 2023 to the Chairperson of the Board of the Respondent on the 14 July 2023 by registered post.  His letter set out that he was working at a different church ground when the CE Supervisor rang him and asked where he was. He told her the location and she asked him to go back to the priest's house on Church Road and cut the high hedge there as a stepladder had been left out for the job. The Complainant replied saying by the time he travelled to the priest’s house, it would be time to leave work. He suggested that he would start this task first thing in the morning. He submitted that the supervisor was not pleased with his reply and she shouted down the phone at him "you haven't done a 19.5 hour week since you started with me".

The Complainant submitted he was hurt and angry and such an outrageous and incorrect accusation. He admitted that he spoke back in a similar tone that he was not going to risk his own life or that of other participants in the CE scheme by using a powerful hedge trimmer at a height on an illegal and dangerous stepladder which would have broken the health and safety regulations. He set out that the reply of the CE supervisor was "we are finished".

The Complainant’s letter of the 14 July 2023 further set out that the Parish lawnmower, strimmer and hedge cutter were out of action and broken down. This explained why it was impossible to cut the grass. He set out that he agreed to bring in his own lawnmower to cut and collect the grass. He used his own car and trailer to transport the grass for disposal. He used his own strimmer and hedge cutter. He also used his own moss and mould remover with a motorised machine to complete his duties.  He pointed out that the timber stepladder provided by the Respondent was not fit for purpose to cut an 8-foot-high hedge. The letter referred to his personal relationship with the CE supervisor.  He submitted that at all times he gave 100% while working on the CE scheme. He stated that he found it incredibly amazing that the other participants of the scheme are unhappy with his performance. He accommodated and facilitated the CE supervisor in every way he possibly could. He disputed he had received a verbal warning or a written warning.

His written submissions were not accepted by the Respondent and he received a letter 24 July 2023 setting out "all documents related to this matter have been reviewed and it is a decision not taken lightly. All the files on you are being submitted to support our decision to DSP to justify we have no choice but to dismiss you".

He queried the date of termination as to whether it was the 8 June 2023, 30 June 2023 or 24 July 2023.

In relation to the Complainant's duty to mitigate his loss, the Complainant gave evidence that he had not taken up new employment since his dismissal and had not sought new employment apart from a bus driver course that he applied for in the fortnight before the hearing.He gave evidence that he was assisting his son in his business and that this might have involved working one or two days per week. He said he had a foot injury and was limited in what work he could do.

The Complainant advised that he had applied for two other CE schemes, but had to wait one year to be placed on a new CE scheme.  He had been successful in obtaining a place on a new CE scheme commencing in the middle of June 2023.

Under cross examination he declined to accept that he 'shouted' at the CE supervisor on the phone.

The Respondent witnesses were the CE Supervisor/ Manager, the Assistant supervisor, an Administration officer, a CE participant and the Chairperson of the Board of Directors of the Respondent / decision maker.

The CE Supervisor gave the majority of the Respondent’s evidence.  She set out the background to the CE scheme, the number of participants on the scheme and the sub sponsors that the scheme operates with.  She gave evidence that in almost 30 years of working with FAS and the Department of Social Protection, this case was the first time that a participant had ever been removed from the CE scheme.

The CE supervisor disputed that she had a personal relationship with the Complainant and described the contention as total lies and despicable.  She said they were friends but “he was not her type”.

Her evidence was that the Complainant had a history of inappropriate and at times aggressive behaviour towards his colleagues and members of the Board of Management of the Respondent. She explained that the Complainant had received a number of previous oral warnings for his conduct.

An example of this was when the Complainant was seconded to work part of his hours with Nenagh Pitch and Put sub-sponsor. In March 2023, the Respondent received a complaint from the Pitch and Put club committee concerning the Complainant's work performance. The club complained that the Complainant did not work while on his scheduled hours with them. The Complainant disputed the grounds for complaint and claimed that he did work his required hours at times when nobody else was at the pitch and putt course to see him working, namely 6 AM.

As a result of the complaint from the Pitch and Put committee, the Respondent switched the Complainant's duties back to full-time working in or around the local church grounds. While there was flexibility in the operation of the scheme when required, the witness described the Complainant as a "sporadic" worker and that he only worked whenever it suited him. If the Complainant didn't want to do a certain type of work, he wouldn't.  She said he was hard to work with and gave a bad example to the other CE workers.

The Complainant was handed a written warning dated 15 March 2023 signed by the CE supervisor and assistant supervisor in their office outlining the above facts regarding the Pitch and Put club and stating in clear terms

"this is a provision that you do not approach any of the sponsors in an aggressive manner… This letter is a written warning and I will have no choice but to remove you from the scheme if there is any more altercations."

The CE supervisor gave evidence that she had raised with the Complainant and his son (also a CE participant) that the grass was not being cut and the hedges were overgrown on the 6 June 2023. 

On the 8 June 2023 she phoned the Complainant to enquire of his whereabouts. The Complainant stated that he was working on the Church grounds but when the supervisor questioned this because she had just checked both Church grounds, the Complainant became vitriolic and abusive. He stated

"you're always on my f..ing back. The trouble with you is you want everything f...ing done on the one day… You can stop telling me what to f...ing do".

The CE supervisor made it clear to the Complainant is not prepared to tolerate this language and suspended him with immediate effect.  She disputed that she raised her voice with the Complainant and said that she was calm during the telephone call. There were two other members of staff in the room with her at the time of the call.  While there was no written letter of suspension, the witness was very clear that she had only suspended the Complainant. She knew there would be a follow-up procedure.

She said she rang her Higher Executive Officer in the Department of Social Protection who advised her to send in a CE Participant Completion form to the Department. The CE manager said she did this immediately. On the form it states that the Complainant was suspended and the reason given was 'verbal abuse to sponsor previously and supervisor again'. The same form set out that the Participant’s Completion date was the 30 June 2023. This form was dated 23 June 2023.

The CE supervisor’s mother passed away on 29 June 2023 and she was not in the office around that time.

The CE supervisor sat down with the Chairman of the board and said that there was "no way she would work with the Complainant again" she said she "refused to let him back on the CE scheme". She said that she had been through two mediations involving disputes with the Complainant before and she was going to facilitate verbal abuse from him.

The witness gave evidence on the verbal warnings given to the Complainant in April 2021 and September 2021. A letter setting out the verbal warnings was given on both instances to the Complainant.

The decision maker who was the chairperson of the Respondents Board of Management gave evidence. He said that he took the role in August 2022 and it took a while for him to transition into the role. He was aware that the Complainant was suspended from 8 June 2023. The CE supervisor contacted him and told him what had happened.

He explained that he received a letter of the Complainant on the 14 July 2023. He read the letter and spoke to the CE supervisor for clarification of what had happened.  He said he alone made the decision to terminate the Complainant's employment and issued the dismissal letter of the 24 July 2023. He said that a Complainant had engaged in an inappropriate outburst and there was an air of upset in the campus and he had a duty of care to take the most appropriate action.

When asked if he had considered holding a meeting with the Complainant, he said no. He said things were raw and it was better not to. He said that the decision to terminate the Complainant’s  employment was based on the Complainant's letter of 14 July 2023.

When questioned and he said he had never heard of the disciplinary procedure or grievance procedure nor SI 147 of 2000.

The Respondent’s letter of 24 July 2023 was read into the record. It was signed by the Chairperson of the Respondent and set out that it had come to the decision that it couldn't ask its supervisors to work with the Complainant again. It set out had no other option but to dismiss him in writing.  It referred to his working hours as three full days one week from 8:45 AM to 5:15 PM on the same two days on the second week. It pointed out that he did not work five half days.

The letter set out the first verbal warning to the Complainant's, the second verbal warning, the letter of written warning and the events of the 8 June 2023 and his suspension after the verbal abuse given to the CE supervisor on the phone.

The other three witnesses on behalf of the Respondent gave corroboration evidence as to the telephone call on 8 June 2023 (two witnesses) and the general behaviour of the Complainant.

The Respondent submitted that it was entitled to dismiss the Complainant because of his treatment of his supervisor and an earlier misconduct while at work. It relied on the Employment Appeals Tribunal three-part test set out in Bigaignon -v- Powerteam Electrical Services Ltd [2012] ELR 195:

-Did the company believes that the employee misconducted himself as alleged? If so:

-Did the company have reasonable grounds to sustain that belief? If so:

-Was the penalty of dismissal proportionate to the alleged misconduct?

The Respondent submitted that it complied with the test set out by the Employment appeals Tribunal above.  It submitted that the treatment by the Complainant of his supervisor constituted gross misconduct and was contrary to his contract of employment and the provisions of the Respondents company handbook. It further submitted that the Respondent had reasonable grounds for suspecting the Complainant to be absent from work without authorisation. The Respondents supervisor had reasonable grounds for suspecting the Complainant was not on site when after searching the grounds, the Complainant was not to be found.

The Respondent submitted that the Complainant was at all material times aware of the grounds of this suspension and his own submissions were fully considered by the Respondent before reaching the decision to dismiss.

The Respondent submitted that the Complainant was entirely responsible for his own dismissal in his treatment of the Supervisor and by his acting in complete disregard of the duty of trust owed to the Respondent.

It submitted the Respondent had ample grounds for its belief that the Complainant was guilty of misconduct given his previous conduct that warranted a written warning, his unauthorised absence from work, his failure to comply with his contract of employment and his abusive treatment of his Supervisor, as witnessed by other members of staff.

The Respondent also pointed out the lack of meaningful efforts by the Complainant to mitigate any alleged loss incurred by him which it denied.

The Respondent relied on section 7 (2) of the Unfair Dismissals Act 1977 as amended and in particular subclauses (b), (c) and (f).

Subclause (f) sets out

'The extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal'.

A substantial amount of the written evidence submitted to me prior to the hearing by the Complainant was not relevant to the matters that I had to deal with. Accordingly, I am not going to refer to it in this decision.

While the Complainant was unrepresented at the hearings and provided very little direct evidence or cross examination, the facility was made available to him.

The burden of proof under the Unfair Dismissal Acts lay on the Respondent to show that the dismissal was fair pursuant to Section 6(6) of the Unfair Dismissals Act 1977 (as amended).

I reviewed the letter warning dated 15 March 2023 setting out the complaint from the Pitch and Put Committee regarding the Complainant's attendance at their club.

There was a dispute as to what was the date of the Complainant's dismissal. I am satisfied that in accordance with the definition of the date of dismissal in the Unfair Dismissals Act 1977 (as amended) the 30 June 2023 was the date of his dismissal as the Respondent honoured his annual leave entitlement as per his contract of employment.  This was the last date that the Complainant was paid.   While on the Respondent described the Complainant as having been suspended, the CE Participant Completion form sent to the Department of Social Protection listed the Completion date of the Complainant's participation on the scheme as the 30 June 2023. This date also ties in with the Complainant's ability to commence another CE Scheme in June 2024. The Complainant's contract of employment indicated that his employment was in strictly linked to his participation in a CE scheme.

Overall, I found the evidence of the Respondents witnesses to be more credible the Complainant. I accepted that they gave the verbal and written warning to the Complainant as outlined in the evidence presented to me.

I found that the witnesses for the Respondent corroborated each other's evidence regarding the factual events that took place leading to 8 June 2023.

However, while the Respondent may have had grounds to relying on section (6)(4)(b) [the conduct of the employee], in terminating the Complainant's employment, section 6 (7) requires me to have regard

(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.

While I accept that the CE Supervisor's mother was unwell around the start of June 2023 and the CE supervisor may not have been in the office full-time, it is clear that there was a failure on the Respondents part to carry out any investigation into the events of 8 June 2023 and whether the Complainant was suspended or summarily dismissed by text. There is a lack of paperwork around that time and it seems that the Respondent was happy to let matters drift on until the Complainant wrote to the Respondent setting out his side of the story some six weeks later. They reply from the Respondent was given without speaking to the Complainant or providing to him any documentation in relation to the decision-making process. No alternatives to dismissal were considered.

Because of the above, I find that the dismissal was procedurally unfair.

I note that the Complainant has sought compensation as his preferred redress.

While I have found that the dismissal was procedurally unfair, I find that they Complainant contributed substantially to his dismissal. I find that the Complainant was quite disruptive on the CE scheme, treated the attendance hours is discretionary and sought to excuse himself from any requirement to attend (including required courses) in whatever way he could arrange. I have taken this into consideration in deciding the quantum of the award.

As the Complainant had made very little effort to minimise his losses and contributed to his own dismissal, I find that the payment of circa two weeks wages as a just and equitable payment, having regard to all the circumstances of this case.

I find that this complaint is well founded.  I award the Complainant €500.00.

Unfair dismissal.  Failure to follow fair procedures.  Contribution to dismissal.  Failure to mitigate losses.