Complainant

Respondent

Anonymised Parties

Employee

Rehab Enterprises Ltd

Representatives

Joseph Ateb Siptu

Laura Kerin IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00059889-002

09/11/2023

In a related case CA-00059889-001 for Unfair Dismissal the following decision was made:

The Complainant knew what she was doing was wrong. Theft of work colleagues’ belongings is very serious. While managers who were the decision makers did not attend, the process prima facie appears to be fair. However, the failure of the decision makers to attend where they have the onus to prove that the decision was fair, technically compromises the Respondent’s case.

The Complainant knew what she was doing was wrong. Theft of work colleagues’ belongings is very serious. While managers who were the decision makers did not attend, the process prima facie appears to be fair. However, the failure of the decision makers to attend where they have the onus to prove that the decision was fair, technically compromises the Respondent’s case. This means technically the decision to dismiss is unfair. However, the conduct of the employee gave rise to the decision and while there are mitigating grounds at play; the fact that the Complainant was attempting to steal from colleagues must bear on what redress is just and equitable having regard to all the circumstances. To reinstate the employee after such an event would undermine the right of the employer to have trust in their employee. Reengagement is not an option as theft undermines the employment relationship such that it is fractured. As this is an unfair dismissal primarily for the failure of witnesses to attend for the Respondent; there is no questioning of the fact of theft, just the severity of the sanction. In these circumstances a small amount of redress is only merited. While the Complainant has a disability, she has the moral compass to know what she did was wrong

Theft breaches the trust and confidence required from both parties. The absence of the decision makers in this case to attend, must lead to a determination that the decision to dismiss was unfair as the onus is placed on the Employer to show that the decision was fair.

I determine that the Complainant was unfairly dismissed and allowing for the circumstances of this case an award of compensation should be made.

 The employee is faced with the fact that she was attempting to steal from colleagues. I determine that the Complainant was unfairly dismissed; however, based on her contribution and conduct that I must have regard to; I award €2500 in compensation.

Based on this decision the Adjudicator asked for the parties to make further submissions on the right to notice:

The decision that issued to your member addressed CA-00059889-001 which was for Unfair Dismissal.

As you are aware each complaint is stand alone and that is important to note in terms of any notice time for appeal. The Unfair Dismissal has issued, and time now runs.

No decision was issued regarding for CA-00059889-02 arising from the fact that the decision findings stated that the conduct of the Complainant significantly contributed to the dismissal. The consequence of that finding means that both parties must now address me on whether the Complainant is then entitled to statutory notice.

The fact that a dismissal is deemed to be unfair does not automatically follow that notice should have been given.

I cite the relevant provision of the Minimum Notice & Terms of Employment Act 1973 that refers to conduct:

Right to terminate contract of employment without notice.

8.—Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

Allowing for my finding in the Unfair Dismissal complaint, which first had to be made, I now must ask both parties to address me on the Complainant’s entitlement to notice.

Both parties have made submissions where the Respondent stated that no notice was due. The Complainant among several decisions referenced both Adjudication and Labour Court decisions where notice was awarded on similar facts.

The Respondent has failed to meet the test that it was correct to summarily dismiss. No witnesses attended the hearing who could have given evidence to justify the decision to summarily dismiss. The denial of notice must be linked to that omission and  while it has been found that the Complainant’s conduct contributed to her dismissal, the fact is the dismissal was Unfair. The case law of the Labour Court in similar cases has awarded notice and the Complainant respectfully asks that the same approach must be applied in this case.

The Complainant accepts that she was attempting to steal from other employees. That act amount to gross conduct. The two statutory breaches are separate and stand alone. The statute clearly provides for summary dismissal based on gross misconduct. That is what occurred here. The claim for Unfair Dismissal while upheld; it was also determined that the Employee significantly contributed to the decision to dismiss. The Employer does not have to give notice where there has been an admission that the Complainant was stealing. The Act provides for dismissal without notice in those circumstances.

The Labour Court cases opened by the Complainant clearly show that there is a line of precedence to award notice where the Employer has not proven the dismissal was fair even when there was asubstantial contribution by the employee for their own dismissal. I note MND233 An Employer v A Worker:

The Court has regard to the contribution made by the Complainant to own dismissal…In the linked case UDD237 the Court has determined that the decision to dismiss the Complainant for gross misconduct was unfair. Therefore, the Complainant is entitled in accordance with the Act to six weeks paid notice.

The facts in this case are similar where the Respondent had every opportunity to adduce evidence to support their decision to dismiss; however, the decision makers failed to attend at the hearing despite a second chance to do so.

I find the complaint is well founded arising from the precedence opened to the Adjudicator and that notice should be given where the Employer has failed to prove their case of Unfair Dismissal. The relevant details to calculate her notice entitlement are:

 The Complainant commenced employment with the Respondent on 20 August 1996 working as a General Operative until her dismissal on 10 July 2023 . She was in receipt of €350 gross pay per week, working 39 hours per week in Rehab Recycle, Tallaght.[employer’s submission]

Commencement date:

·       20th of August 1996

The date of dismissal was:

·       17th of August 2023.

The weekly rate of gross pay was:

·       €350 gross weekly.

Minimum period of notice.

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

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

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(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,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

I determine the notice to be paid is as follows: 8 weeks = 8 x €350=€2800.

I find the complaint is well founded. The relevant details to calculate her notice entitlement are:

 “The Complainant commenced employment with the Respondent on 20 August 1996 working as a General Operative until her dismissal on 10 July 2023 . She was in receipt of €350 gross pay per week, working 39 hours per week in Rehab Recycle, Tallaght.[employer’s submission]”

Commencement date:

·       20th of August 1996

The date of dismissal was:

·       17th of August 2023.

The weekly rate of gross pay was:

·       €350 gross weekly

I determine the notice to be paid as follows: 8 weeks = 8 x €350=€2800.

Notice entitlement