Complainant

Respondent

Parties

Ioan  Pop

City Break Apartments Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Caoimhe Connolly, Solicitor;  Moran & Ryan Solicitors

Barry Crushell; Crushell & Co 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-00056100-001

17/04/2023

The complainant undertook to give his evidence under oath.  One witness for the complaint and four for the respondent undertook to give evidence under affirmation.  The parties were given the opportunity to cross examine the witnesses.

The hearing took place with the assistance of an interpreter provided by the WRC.

The complainant worked as a maintenance contractor. There were several acts of gross misconduct which were later admitted by the complainant.  An investigation and disciplinary process was undertaken, the complainant was suspended with pay while the investigation took place. The respondent submitted that they provided a fair process and gave the complainant the right to appeal. He stated he wished to appeal and sought additional time but did not revert with an appeal, rather filing a complaint with the WRC.

The respondent noted that there was a close personal friendship between the complainant and a director, one of great trust where loans to the order of over €40,000 were provided to him in order to help him renovate his home in Ireland.

The respondent submitted that the complainant has not mitigated his losses and, if any award is made, it should be set at zero owing to the misconduct of the complainant.

The respondent submitted that in all the circumstances, it was reasonable to dismiss the complainant

Respondent witness #1, the Managing Director. The witness stated that the company was involved in maintenance and housekeeping of corporate rentals and student apartments, etc. He stated that over time the complainant came to do more and more work for them and undertook various types of work. He was mainly involved in doing maintenance jobs and the company used a traffic light system, red; yellow and green to flag the jobs in order of priority.

He noted that there were a number of major disciplinary incidents with the complainant, involving a fuel card, involving clocking-in and involving paperwork for a radiator he was using on a nixer job.  A number of time discrepancies were noted in respect of the complainant, in that he was repeatedly clocking in from home.

At a meeting of 19 January 2023, it was put to him that he clocked in while he wasn't working. The witness conceded that he may have used abusive language on the phone because he was frustrated and lost his cool. The witness noted that he never had any issues with the complainant's English, the complainant never had to use google translate or resort to other means. The witness noted that the complainant was using his fuel card to fill the company van and then filling his personal car the next day.

The witness noted that his background was in finance and property so he was aware that some staff would have undertaken mixers, which were ignored or allowed depending on the circumstances. He accepted that the complainant was dismissed at the conclusion of the disciplinary meeting as he couldn't justify keeping him on that too much trust had been broken and their relationship was irreparable. He stated that they did consider other sanctions such as would the complainant be still able to do some contract work, but ultimately dismissed any other possible sanctions as the depth of the mistrust was too deep.

Under cross examination it was put to him that as regards the fuel card misuse, he was only able to give one instance of when a warning was given to the complainant. It was put to him that he did not consider any other sanctions. In relation to his own behaviour, he noted that he only becomes aggressive on rare occasions but he explained that the level of mistrust can be explained away when you consider that the company loaned the complainant €45,000 to buy his home. He conceded that he can't remember what he said exactly but that he was aggressive. He noted that the second loan advanced to the complainant was still outstanding. He conceded that the loan outstanding was not the issue itself but the fact that it was outstanding probably caused him to become aggressive with the complainant. He re-stated that he couldn't remember specific wording that he used.

When it was put to him whether the respondent followed the disciplinary procedure for verbal warnings, he said they did not. He noted that work was undertaken outside of official hours by the complainant and that he was providing radiators, of the same kind that the respondents stocked, on mixer jobs but that he was unable to provide evidence of having purchased those radiators when it was put to him.

The witness admitted that the finding to dismiss the complainant was arrived at on 7 February but that the decision was only conveyed on 14 February because they waited a week to finalise matters. The witness reiterated that the outstanding loans were not a reason for the dismissal of the complainant. When it was put to him whether the respondent could have been fairer to the complainant, he stated “no, that they were very fair to him throughout his career”. It was also put to him that the complainant was let go to reduce waste and inefficiencies but the witness clarified that they were understaffed rather than over staffed so this was not correct.

Respondent witness #2, a Co-founder and Director. The witness noted that he was not involved in the day-to-day running of the business but sat in on financial meetings. He stated that he had a close relationship with the complainant, and his wife, who stayed in a property he owned when the complainant started to work with them. He noted that he had a long connection with him.

As regards the disciplinary procedure, the witness noted that he had misgivings regarding the complainant’s timekeeping. He noted that the complainant took on three renovation projects and was loaned more than €40,000, and at the time of his dismissal was seeking a third loan from the company.

The witness noted that the complainant was spending a lot of time completing his own projects rather than on the work of the company. He noted that the disciplinary procedure relied on three of the other witnesses but noted that it was done in accordance with procedures. He noted that the complainant asked the respondent to give him time and he would make everything alright. He noted that there was some threat that the matters would go to courts or other legal process, but he noted that the complainant “was a friend”. However, he stated that the complainant was abusing the trust that the company had put in him.

Under cross examination the witness confirmed that he was not involved in the day-to-day running of the office but was in close contact with the office. It was put to him that he wasn't aware of any arrangements regarding clocking in.  He stated that there were no official arrangements in place to cater for the complainants’ other projects. When he was asked whether he was he surprised by the decision to dismiss the complainant, he stated “no, not surprised but disappointed”. He thought that perhaps they may have gone down another avenue if the complainant had pursued the appeal.  This was not pursued.  The witness noted that the complainant was misrepresenting his timekeeping and misrepresenting the fuel card issue.

Respondent witness #3 the Chief Financial Officer. The witness said that his role was to oversee financial matters within the company, and he had responsibility for some administration. He noted that he was also there to safeguard the assets of the company. He stated that a lot of trust was placed in its maintenance operatives and that the Operations Manager aimed to get more out of the process and introduced controls and efficiencies into the system post COVID. It was at this time that the company became aware of clock-in discrepancies. The system uses geolocation and the system showed that the complainant was clocking in from one particular area a lot. It became obvious that the complainant was clocking in from home.

The witness noted that others in the company would have had a personal relationship with the complainant but that he did not. He noted that at the meeting of the 7th of February the complainant acknowledged his inappropriate use of the clock-in system and gave a full admission of his guilt in that regard. A week later a meeting was arranged at which the complainant was suspended with pay. He stated that the complainant communicated that he didn't understand what went on. However, there was no satisfactory explanation from the complainant as to what was going on. The witness noted that you can't micromanage somebody, you can't follow them around from one apartment to another. He stated that they considered other options such as giving the complainant a final warning or a reduction in pay but none of the options were considered suitable in the circumstances of the case. He said there was no communication from the complainant following his seeking an extension of time to lodge an appeal on 13 March.

Under cross examination it was put to him that GPS could follow an employee around, the witness noted that they were looking at the GPS system. The witness made reference to an active informal verbal warning in place, and it was put to him that there is no reference to it in the handbook. It was also put to him that there was no corrective plan in place. The witness conceded that they could have put the complainant on a final warning, but they found that a final warning or a corrective plan was not suitable. He noted that there were discrepancies in a number of areas, and they were not explained by the complainant, they weren't just simple hours missing.

Under redirection he was asked about the disciplinary process. He noted that the complainant's wife was his representative/translator, and both the complainant and his wife answered the questions that were put to him. However, he noted that the complainant's wife would interject in the middle of her husband answering a question.

Respondent witness #4, the HR Consultant. The witness noted he was involved in the Disciplinary procedure. There was a fact-finding mission involved.  He noted that the organisation was flat in structure.  He noted that his role was to look at whether the acts and omissions of the complainant were deliberate or negligent, or deliberate and negligent.  He examined six allegations of fraudulent time keeping.  He noted that the complainant's wife was there as translator but answered for him, and over him. He noted to the complainant that the option of an appeal was available to the employee and that the appeal should be in six days later.

Under cross examination he was asked whether the issue of a risk to children who were in the van with the complainant was put to him (regarding an allegation of insured persons in the van). It was noted that there were verbal warnings on his file but that there wasn't any clarification regarding the dates. The witness noted that from a reasonable point of view the respondent followed all the steps in relation to the disciplinary procedure. A final warning was considered however the breach of trust overwrote all of the issues. It was put to him that there was a statutory duty of care to the complainant which overrode any sanctions.

The complainant submitted that his employer acted shamefully towards him and that he suffered personally from the treatment he received at their hands. It was submitted that material ought to have been made available to him at an earlier stage. It was submitted that the dismissal appeal letter was sent to the respondent and that he had sought to appeal, but that appeal did not proceed. The complainant accepted that he did not proceed with the appeal and that he did not engage further with the respondent.

The complainant submitted that he was dismissed in a sudden and abrupt fashion where he had two active verbal warnings and that very cruel words were used regarding his wife.

Complainants evidence:

The complainant was asked whether he worked for anybody else but stated that from 2015 onwards he didn't have the time to do any work elsewhere. He noted that he did some nixer work after hours.  He stated that he didn't know why he was being brought to the 7 February discussion.  He said he had a private meeting with one of the directors earlier that day and was told by him that his job was gone. Later that day, in the meeting, it was put him about the he misused the fuel card and the accusation of abusing the clock-in system. He said that the clock-in accusation was from a long time ago but that he had an agreement on hours. The complainant stated that he believed he was had become too expensive and that the respondent were now using a lot of Filipinos. He conceded that he was not given permission before clocking in when he went to collect his kids and he conceded that he did do nixer's but only after hours. When it was put to him that the relationship of trust between himself and his employer was broken by him, he said that all this arose because there were health and safety issues with his employer regarding moving a couch. He also noted that he was given a loan for his house.

The complainant stated that following his dismissal he was trying to get work and went knocking on a friend's door for a job. However he noted that he went fishing a lot which was good for his mental health. He noted that he made a CV and three weeks after being let go he went to the job centre. He also noted that two or three months ago he sought a driving licence. He noted that he made phone calls to friends looking for work.

Under cross examination the abuse of the fuel card was put to him. He was asked did he drive to Cork to buy a tree for his own garden. He said he did but that he had permission to drive the van for himself and so he went to cork. He left around 2 in the afternoon and did not know where he picked up the tree. It was put to him that there were issues with his honesty as regards clocking in again.

As regards the suggestion that he could perhaps have come back as a subcontractor, he said he needed a job as he had lots of loans to pay and subcontracting would not work. He said the decision regarding his future was made before the disciplinary meeting that took place. He confirmed that following his dismissal, he went fishing for his mental health and noted that on 14 September 2023 he called into the job centre occasionally. When he was asked what he has done since his dismissal he said he was working on his house, and as he had no money, he has done the work on his house on a barter basis. He said he did not contact his former employer regarding contractor work. The complainant did not accept that his actions contributed to his dismissal at all.

The second witness for the complainant was the complainant's wife. She said she was shocked at language used in relation to her by one of the directors.

The complainant was employed with the respondent over an extended period of time. The two parties had built up a relationship of trust to such an extent that the respondent gave the complainant loans of in excess of €40,000 in order to renovate his home. This relationship goes way beyond a normal employer-employee relationship. The complainant and one director in particular had developed a lasting friendship and this director was prepared to vouch for the complainant when advancing various loans to him.  The issue of a breach of trust arises in these unique circumstances.

The complainant did not bring the errors or misuse of the time clock to the notification of the respondent. This came to light when a review of the system was undertaken, and a number of irregularities appeared.  As part of the investigation, the complainant admitted to the misuse of the clock-in facility but indicated that special arrangements were made for him. The issue of special arrangements was not borne out in the evidence provided to the hearing.

The evidence given by a number of witnesses indicated that the respondent gave consideration to alternatives to dismissal but discounted them for various reasons, not least of which was a breach of trust, a unique level of trust, between the complainant and the directors.

The respondent made the decision to dismiss the complainant on the basis of gross misconduct. This was conveyed to the complainant along with his right to appeal. He was provided with the right to be accompanied to the meeting.  The complainant was given a five-day timeframe within which to appeal. He sought to extend the timeframe, but it appears that he did not engage with the respondent to any degree thereafter.  Although there is a suggestion that the complainant may have lodged an appeal, I do not find that this is borne out by the evidence.

One of the witnesses indicated that if the complainant had appealed, that the witness may have sought leniency for the complaint, however, he noted that no appeal was made. In the circumstances where there may have been flaws in the initial investigation, if the complainant had appealed than any flaws could have been considered and perhaps rectified.  The complainant had the complainant chose not to appeal.

The respondent submitted a number of decision in support of its approach in relation the dismissal of the complainant:

In relation to the summary dismissal, the respondent submitted that  the applicable legal test is that of the “band of reasonable responses” test, as set out by Mr Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. 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 - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

The respondent noted that having considered the matter and the testimony of the witnesses to be called, the decision to dismiss was within the range of reasonable responses of a reasonable employer.   The respondent noted the case of Looney & Co. Limited -v- Looney (UD843/1984), we contend that any employer faced with similar circumstances to those that pertain to this case, would have acted in the same way

The applicable law

Section 6 of the Act provides:

“6-(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all of the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, 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 of more of the following:

…..

(b) the conduct of the employee.

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 circumstances where there was a breach of trust to the degree outlined in evidence, when taken into account along with the high level of trust afforded to the complainant, I find that the respondent acted reasonably in the circumstances. Having regard to those circumstances, I find that this dismissal was not unfair.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissals Act – gross misconduct – right to be accompanied – right to appeal – does not amount to an unfair dismissal