Complainant

Respondent

Parties

Thomas  Delaney

NSP Expert Lab Solutions

Representatives

  Self-represented

 Malachy Kearney Solicitor

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-00063447-001

08/05/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation.  No witnesses attended for the respondent who was represented by a solicitor at the hearing. Cross examination of the complainant took place.

The respondent’s case was set out in a written submission in advance of the hearing, and reiterated by their representative, is that it received a protected disclosure, a recorded conversation between the complainant and a member of their staff. In that conversation the complainant had raised issues that were considered to amount to gross misconduct. Arising from this the complainant was summarily dismissed.

The respondent noted that the recorded conversation demonstrated a breakdown in the employment relationship, and it was left with no option but summary dismissal of the complainant.  In written submissions the respondent noted, amongst other things, that the foundations for the company’s disciplinary action was based on the protected disclosure.  The respondent noted that as per the provisions of its handbook, the company reserved the right to bypass any step in the disciplinary process if it feels that severity of the action warranted it. It was decided that in this instance the working relationship with the complainant was irretrievable and that dismissal was the only outcome.

The written correspondence received from the respondent confirmed that the complainant was asked to attend at the company's offices where a letter was read out to him dismissing him for gross misconduct and he was handed a signed hard copy of the letter. His laptop, phone, credit card, keys to the company car, and most codes were handed back to the respondent there and then and a taxi was waiting to take him home. The respondent noted that the complainant was paid in full for any holiday pay and monies owed.

The complaint outlined that he was dismissed on 3 May 2024 after eight and a half years employment with the respondent. He noted that he was off on stress leave and when he received a phone call from the head of HR he vented his frustrations. He noted that he was not given the transcript of the phone call nor was he involved in the investigation. He confirmed that he did not give his permission for the phone call to be recorded and he understood that the conversation was one that was undertaken in confidence with his HR manager.

He confirmed that he was brought to a hearing after the decision regarding his future was already made. He was not provided with any opportunity to be involved in the investigation or the disciplinary hearing as it would be counterproductive. The complainant raised the case of Re: Haughey when he noted that the decision was unjust and was not taken on the basis of a thorough investigation. He stated that the process did not adhere to the principles of natural justice and fairness. He said the decision was taken based on a transcript of a telephone conversation which was neither agreed by him nor provided to him. He suggested that he was given no fair opportunity to address the allegation and that the procedure was fundamentally flawed and unfair.

As to the position on representation, the complainant noted that his representative was unaware of the nature of the meeting that he was called to but knew that it was disciplinary. His representative was not in a position to gather any evidence to support their case.

The complainant stated that the recording was made in February but was only sent to the CEO in May, thereafter it only took 24 hours to dismiss him. He feels that the head of HR was biased in her dealings with him from the time of the phone call until he was dismissed.

Under cross examination the complainant confirmed that he was unemployed at the time of the hearing, he confirmed that his income was €1085 per week as per his pay slip.

The complainant summarised his case by stating that he considered that the procedures were flawed and lacked transparency, and that he was given no opportunity to respond to the case. He noted that the evidence against him was insufficient and was based on assumptions. He stated that the sanction was disproportionate and that mitigating circumstances should have been taken into account.

The complainant sought compensation.

The case mentioned by the complainant, that of ‘Re: Haughey’ was the case heard by the Supreme Court in 1971. {Re: Haughey [1971] IR 217. 6. Glover v. BLN Ltd [1973] IR 388}.  Amongst other things it laid down basic rights to which a person is entitled to ensure their good name. It established that at a minimum a person is entitled to be provided with a copy of any evidence against them, that they should be allowed to cross examine the person making the accusation against them, that they should be allowed to provide evidence that might rebut the allegations being made against them and finally that they should be permitted to address whoever is conducting the investigation and/or making the decision. The latter right should be by way of oral hearing unless there is considerable reasons to vary from that.

The Code of Practise on Grievance and Disciplinary Procedures published by the WRC provides an outline what should be provided to an individual who is the subject of disciplinary procedures. Although an employer is not obliged to follow the code of practise when they have disciplinary procedures already in place, point 4.6 outlines the general principles of natural justice and fair procedures which should be followed in all disciplinary processes in line with Re: Haughey above.  It states as follows:

6. The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

That employee grievances are fairly examined and processed

That details of any allegations or complaints are put to the employee concerned

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

Although there was no oral evidence given by witnesses for the respondent, I note that the respondents  written submission indicates that the complainant was not party to the investigation nor the disciplinary process but was simply called in to have the decision ‘read at’ him.  This was confirmed by the complainant in his evidence.  No details of any allegations were put to him, and he was not given the opportunity to respond at all to any allegations or complaints. He was not given the opportunity to make representations that should have been taken into account for a fair and impartial determination of the issues.

On the basis of the foregoing and in the absence of any verifiable oral evidence either to the contrary or detailing why such fundamental principles were not adhered to, I am satisfied that the complainant was unfairly dismissed.

As to the level of financial loss, the complainant noted that he was unemployed from the date of his dismissal until the date of the hearing (14 weeks). He gave evidence that his pay slip indicated that his weekly gross wage amounted to €1085 per week.  The complainant did not provide evidence of his efforts to secure alternative employment.  Having regard to all the circumstances, I am satisfied that compensation amounting to €10,000 in respect of loss of earnings is appropriate in respect of the complainant’s loss of earnings.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant was unfairly dismissed.  The complainant shall be entitled to compensation amounting to €10,000 which is just and equitable having regard to all the circumstances.

Unfair Dismissal – RE: Haughey principles – dismissal was unfair – award of compensation for loss of earnings.