Complainant

Respondent

Parties

Sam  Ellison

KB Private Limited

Representatives

Self on Day 1

Michael Ellison assisting on Day 2 and Day 3

Dominic Wilkinson BL instructed by  ARAG Legal Protection

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00062938-001

17/04/2024

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

CA-00062938-002

17/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00062938-003

17/04/2024

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

CA-00062938-004

17/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00062938-005

17/04/2024

The hearing took place over three days. There were no witnesses apart from the Complainant on his side. On the first hearing day the business owner attended but he did not give evidence. On the second and third hearing days the store manager and the area manager gave evidence for the Respondent.

The Complainant commenced working for the Respondent on the 30 November 2022.  His employment ended on the 6 January 2024.

His role was that of the general operative / floor staff in a small shop in Co Westmeath. His complaint form stated that he was paid weekly for a 40 hour week with a gross salary of €389 per week.

On the first hearing day, the Complainant gave evidence of his efforts to mitigate his losses arising from his unfair dismissal. The Complainant stated that he was unemployed between January 2024 and August 2024.

He gave evidence of the places where he had applied for work. These were a local hardware store, local joinery business and local takeaway business.

He set out that he started working on 13 August 2024 in a shop in Mullingar earning the same amount as with the Respondent.

On the second hearing date, the Complainant presented better particulars of his efforts to mitigate his loss. He identified businesses that he approached in January /February 2024 and June and July 2024 seeking work. He submitted that he had made multiple applications on the website Indeed.

He gave evidence that he worked 3 days in March 2024 for a local dog treats company. This is on the 18, 19 and 20 March 2024. He resigned from the role over an incident regarding him wearing ear pods at work and this annoyed him. He said his mental state was that of distraught. 

He gave evidence that he had previously worked for the dog treats business when he was in school.  He worked there 3 days before. He described it as a well-paying job and was paid €12.30 per hour. He described the work as mind-numbing and said it wasn't worth the pay that he was getting. The work was monotonous and he needed a more stimulating job for his mental well-being. He explained that his mental health was more important to him than financial stability.  The Complainant submitted that he was depressed at the time but admitted under cross examination that he didn't attend his GP or hospital for a diagnosis or treatment. He explained that he didn't have a medical card at the time and that his GP was located some 15 to 20 km from his home.

The Complainant didn't drive and had no direct access to public transport. He cycled wherever he needed to travel to. He explained that he was limited in what roles could apply for because his transport was bicycle only. He needed to cycle 10 km to the local town to get a bus. The Complainant's evidence was that it was always raining and the roads were very dirty.

I was provided with a copy of the Complainant's contract of employment. This is dated 9 December 2022 and was signed by both the manager and the Complainant. During the hearing I was advised that the Complainant did not personally sign the contract of employment but authorised another member of staff to sign the contract on his behalf.

Part of the contract of employment set out the Dismissal policy of the Respondent. On page 5 it set out

"You may be dismissed from the store for:

Incompetence or poor work performance

Misconduct, serious or persistent

........ “

The clause went on to state "all dismissals will be carried out in accordance with the provisions in the disciplinary procedure below".

On page 6 of the Contract of Employment it set out

“Serious Misconduct

If you are guilty of serious misconduct you will be

-Given a final warning

or

-Suspended from duty without pay

or

-Dismissed from your employment

Note: in serious cases [of] misconduct, a full investigation will be carried out by the Store. You may be suspended pending full investigation”.

CA- 00062938-001:  This complaint was an unlawful deduction from his wages. The amount claimed was related to backpay that was due to him. He submitted a claim for €380.

CA- 00062938-002:  This complaint was unfair dismissal. The Complainant explained that on 6 December 2023 he booked three weeks holidays for the period 12 December 2023 to 31 December 2023.  The Complainant was to travel to Spain during this period. The Complainant stated that his manager allowed him to take these holidays.

The Complainant set out that a week before he returned home from his annual leave, he saw that his roster had changed cutting his work week from 40 hours to 6 hours. 

On his return to work queried this with his manager. His manager said that it was because he took holidays. His manager asked him to come in to work on 7 January 2024. The Complainant's replied saying what was the point in working in the shop, he might as well leave. The Complainant later agreed to work the hours but said to his manager that he was "disgusted with the behaviour and didn't think that he would be treated like that". He queried again with the manager as to why his hours were cut. He was angry during the conversation. He made reference to his father taking action against the manager. The Complainant clarified at the hearing that it was an angry empty threat.

The conversation ended with the manager stating that the Complainant was fired. He told him to get out of the building.

CA- 00062938-003:  This complaint related to penalisation for making a complaint under the Safety, Health and Welfare at Work Act 2005. The Complainant set out that on the 22 November 2023, a customer came into the shop and threatened to kill him and his father. The Complainant notified his area manager of this and told him that he was not comfortable serving her on the tills and asked for her to be banned from the shop. The area manager declined to do this and set out that the dispute between the Complainant and the customer was in relation to a personal matter relative to his father and the shop could do nothing about it.

CA- 00062938-004:  This complaint related to failure to provide him with his minimum notice under the Minimum Notice and Terms of Employment Act 1973.

CA- 00062938-005:  This complaint was under the Protection of Employees (Fixed-Term Work) Act 2003. This was withdrawn at the hearing.

CA- 00062938-001:

The Respondent disputed that the Complainant was owed any backpay.

In the appendices provided by the Respondent, I was provided with the timesheet for the week ending 5 January 2024. It showed that the Complainant had worked 5.5 hours that week and the note alongside the Complainant's name was "pay whatever is owed. End of service".

I was provided with the last payslip that the Complainant was given.

It set out that the Complainant was paid 5.5 hours and received a further 5.5 hours bank holiday pay and 0.44 hours holiday pay. The total pay made was €145.29 gross.

CA- 00062938-002:  The Respondent’s case is that the Complainant absented himself from work without approval from 10 December 2023.

On the 8 December 2023 the Complainant approached his line manager and requested holiday leave. He informed his line manager that he would be on holidays from the 12 December 2023 to the 30 December 2023. His line manager advised him that staff were not permitted holiday leave during this period and it was clearly written on the office/staff wall as it was the busiest time of the year in the run-up to Christmas. This had already been communicated to staff and applied across the board to all employees of the Respondent.

The Complainant informed his line manager that his holiday was booked and showed the booking. His line manager advised him that he was not authorised to approve this request for annual leave.

The Respondent had to engage a new member of staff to work the hours that the Complainant was unavailable. The Respondent was uncertain as to whether the Complainant would return to work following his unauthorised annual leave. As a result, the Respondent rostered the Complainant for one shift on the 1 January 2024.

On the 6 January 2024, the Complainant attended the store and spoke with his line manager. He accused his line manager of punishing him for taking annual leave and he said he was being treated unfairly. He referred to his personal circumstances and it was submitted that the Complainant became increasingly agitated and hostile towards his line manager.

The Complainant said words to the effect that "he could stick his job as he was leaving anyway". The Respondent took this is a resignation.

Later the Complainant withdrew his verbal resignation and said he would return to work the next day. However, in the course of the conversation the Complainant told his line manager to "f*ck off" and he would "hurt him" and that his "father would have him". The line manager felt threatened at this point. The Complainant also referenced suing the Respondent. The Complainant was advised that his behaviour was unacceptable and threatening staff was a gross misconduct.

The Complainant's father made contact with the Respondent thereafter.

The Respondent considered the events of the 6 January 2024 and classified the Complainant's conduct as gross misconduct. A letter dated 8 January 2024 was produced terminating the Complainant's employment.

I was provided with a copy of the letter 8 January 2024.  The letter set out

"We regret to inform you that your employment is being terminated immediately. This decision has been made due to your gross misconduct which violates company code of conduct.

Specifically your actions, shouting abuse at the store manager and using threatening behaviour towards the store manager on the 6 January. All this [sic] done in front of the two deli staff members and customers.

As a result, your employment can no longer continue due to your gross misconduct and that the proper steps of the company's disciplinary procedure was followed."

The letter was signed by the store manager who was the Complainant's line manager and the person with whom he had the altercation on the 6 January 2024.

The Respondent relied on section 6 (4) (b) of the Unfair Dismissal Act 1977 which makes reference to the conduct of the employee and section 6 (7) which is refers to the reasonableness of the employer.

The Respondent also relied on the High Court case of The Governor of Bank of Ireland v O'Reilly 2015 IEHC 241 in the reference to the range of reasonable responses of a reasonable employer to the conduct concerned.

The Respondents addressed the tenability of continued employment in circumstances where the employee had grossly misconducted himself.

CA- 00062938-001:  I accept the Complainant’s evidence that he worked a week ‘in hand’ and this is usual in employment situations of this type.

CA- 00062938-002:

As dismissal was not in dispute the burden of proof was on the Respondent to show that the dismissal was not unfair.

Section 6 (1) of the Unfair Dismissal Act 1977 contains the general overriding proposition that the dismissal of an employee is deemed to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying dismissal.

Subsection (6) further provides that, in determining whether the dismissal was unfair or not, it will be for the employer to show that there were substantial grounds justifying the dismissal. The burden of proof is on the employer.

Section 6(7) sets out

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.

Ms. Justice Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, set out (at p. 4):

‘Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

“The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

The general approach taken in relation to cases of dismissals for conduct was set out in Hennessy v Read & Write Shop Ltd UD 192/1978 (reproduced in Madden and Kerr, Unfair Dismissal: Cases and Commentary (2nd ed., 1996), p.317):

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to

1. the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

2. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

This requires an adjudication officer to consider whether the employee was made aware of all allegations and complaints that formed the basis of the proposed dismissal, whether the employee had adequate opportunity to deny the allegations or explain the circumstances before the decision to dismiss was taken, whether the employer believed that the employee had conducted himself or herself as alleged, whether the employer had reasonable grounds to sustain that belief and, if so, whether the penalty of dismissal was proportionate to the alleged misconduct.

The Respondent maintained that the Complainant was responsible for his own dismissal.

The Respondent’s witnesses came across as credible and had a difficult situation to deal with.  It was clear that the Complainant and his father were close, but this brought external issues into the workplace which otherwise might not have arisen.  This was relayed to the Complainant during one of the audio recordings played to me at the first hearing date.  I was presented with evidence during the hearing dates that the Complainant and the shop manager had a good relationship and the shop was a nice place to work in. 

The incident with the shop customer in November 2023 was related to his father’s personal relationship breakdown and this spilled into the Complainant’s workplace.  The Complainant also reported the issue to the Gardai but he was not happy with the outcome of his complaint.  This is now the subject matter of a pending GSOC investigation. 

I accept that the evidence of the Area manager that he spoke with the customer, the Complainant and the Complainant’s father and overall he believed that the matter was resolved.  The customer had said goodbye to the Complainant when she left the shop and the Area manager followed her to the car park and spoke to her and asked her to keep anything to do with the Complainant’s father out of the shop.  She apologised to the Area manager for her behaviour.   

The Complainant’s father booked flights for the Complainant as a surprise for his son.  This was done without prior agreement with the Complainant’s line manager.  The Respondent had two issues with this (1) short notice of three weeks annual leave request and (2) it was during the busiest period for the shop and it was during a time that all staff were required to be available to work the rosters.  This was notified to staff on the wall planner.  This is a common requirement of retail businesses’ during the Christmas season and not surprising to hear. I accept the Respondent’s evidence in this regard.

I further accept that the Respondent warned the Complainant before he took his three weeks annual leave that he could face disciplinary action on his return.

The Labour Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.

I find that the procedures adopted by the Respondent in the termination of the Complainant’s employment were seriously flawed. He was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000 in that no disciplinary process was held.

Leaving aside the breach of fair procedures in the failure to follow its own disciplinary procedure, even taking the verbal altercation between the Complainant and his manager at its highest, I do not accept that the conduct of the Complainant was such that warranted his dismissal.

I find that the dismissal of the Complainant was unfair.

In regard to redress, I find that compensation is the most appropriate in the circumstances. I note that the Complainant incurred financial loss attributable to the dismissal.

Section 7 (1) (c) sets out that "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 as is just and equitable having regard to all of the circumstances".

In calculating compensation, I am required to consider the Complainant’s attempts to mitigate his losses following his dismissal. Having regard to the totality of the evidence presented, I do not accept that the Complainant did enough to mitigate his loss and find that he did not act reasonably in all the circumstances (Section 7 (2) (c)). Also, not all the explanations as to his inability to find work such as needing a car to travel and why he left the employment he did secure with the pet treats factory were linked to his dismissal pursuant to Section 7 (2) (b). As was set out by the Labour Court in Smith v Leddy UDD 74/2019 I expected to see “evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”.   I was not provided sufficient evidence of this.

Having regard to the totality of the evidence presented, the evidence regarding mitigation and the serious flaws in the procedures adopted by the Respondent in the summary termination of the Complainant's employment, I award the Complainant the sum of €4,000.00 being just over 10 weeks salary. 

CA- 00062938-003

The burden of proof in this case is on the balance of probabilities. The Safety Health and Welfare at Act 2005 (the Act) is silent on the question of who the burden of proof should be allocated to as between the parties.

In O’ Neill -v- Toni and Guy Blackrock Limited [2010] ELR 1, the Labour Court held:

“In the instant case what is at issue is the motive or reason for the Claimant’s dismissal. That is to be found in the thought process of the decision-makers at the time the decision to dismiss the Complainant was taken. That is something which is peculiarly within the knowledge of the Respondent. It would be palpably unfair to expect the Claimant to adduce direct evidence to show that the Respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the Respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act.

Having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

I have applied this process to come to my decision on this complaint.

The Complainant’s evidence was that he and his father were threatened by a customer on 22 November 2023. This was a complaint relating to the Complainant’s safety. I find that this complaint was a protected act under the provisions of the Act.

It is clear from the language of Section 27 that in order to make out a complaint of penalisation, it is necessary for a Complainant to establish that the detriment which is complained of was imposed ‘for’ having committed one of the acts protected by subs. (3). Thus, the detriment giving rise to the Complainant must have been incurred because of, or in retaliation for, the Complainant making a protected act. This suggests that where there is more than one causal factor in a chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that ‘but for’ the Complainant having committed the protected act, he would not have suffered the detriment.

The Complainant submitted that the reduction of his workhours in January 2024 and ultimate dismissal on the 6 January 2024 were linked to the events of the 22 November 2023. 

Having examined and reflected on the evidence from both sides, I prefer the evidence of the Respondent.   I am satisfied, as a matter of probability, that the altercation the Complainant had with the customer on the 22 November 2023 was not the cause of his reduced work hours and his dismissal from his work on the 6 January 2024.  The intervening acts of the Complainant in taking three weeks annual leave in December 2023 were explained at all times as the reason for the termination of the Complainant’s employment even during the audio recordings post the termination date. 

CA- 00062938-004: This follows the findings I made in the above Unfair Dismissal complaint above.   I award the Complainant 1 weeks’ notice which amounts to €380.00.

CA- 00062938-001:  This complaint is well founded.  I award the Complainant €380.00

CA- 00062938-002: This complaint is well founded.  I award the Complainant €4,000.00

CA- 00062938-003: This complaint is not well founded.

CA- 00062938-004: This follows the findings I made in the above Unfair Dismissal complaint above.   I award the Complainant 1 weeks’ notice which amount to €380.00.

CA- 00062938-005:  This complaint was withdrawn at the hearing.  I make no decision in relation to same. 

Unfair dismissal.  No disciplinary procedure.  Breach of fair procedures. Disproportionate outcome. 

No causal link to alleged penalisation.