Complainant

Respondent

Parties

Barry  Matthews

Tesco Ireland Limited

Complainant

Respondent

Anonymised Parties

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Representatives

 Catherine Fee & Co. Solicitors

James Cleary IBEC

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-00045156-001

13/07/2021

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

CA-00045157-001

13/07/2021

-          The Complainant was employed as a Security Officer by the Respondent from October/November 2004 until his dismissal on 28/5/2021. Allegations were made against the Complainant that he received and/or sought CCTV footage of an incident involving an individual arising from which an investigation and disciplinary process was instigated. The Complainant disputed and denied the complaints and took issue with the disciplinary process and the sanction of dismissal. The Respondent maintained the dismissal was fair and justified in all the circumstances.

-          The Complainant withdrew CA-00045157-001 in the course of the adjudication hearing.

-          In his submission the Complainant also raised a complaint under the Minimum Notice and Terms of Employment Act [1973-2017] although this complaint was not identified on his Complaint Form to the WRC received on 13/7/2021. The Respondent objected to this complaint on the grounds of being out of time. I stated I would hear the complaint.

The Respondent stated that on 12 March 2021 it became aware the Complainant had requested CCTV footage of an incident involving an individual which took place in its car park on 8 March 2021. The Respondent outlined that a fact-finding investigation commenced on 15 March 2021. In that regard the Respondent stated that its Store Manager/A and Colleague Relations Partner met with the Complainant on 15 March and read him a written statement which alleged the Complainant had requested the CCTV footage. The Respondent noted that the Complainant denied this at the meeting on 15 March 2021.

A subsequent meeting took place on 16 March 2021 in the course of which the Complainant was shown screenshots of WhatsApp messages which according to the Respondent demonstrated that the Complainant had indeed requested the CCTV footage. In that regard the Respondent referred to the profile picture of the Complainant which appeared on the WhatsApp message and the Complainant’s comment that he wished to  “have a giggle at that later”. The Respondent stated that at the meeting on 16 March the Complainant stated that the reason he requested the footage was “just a laugh/to look at it”.

The Complainant was suspended on full pay on 16 March 2021 pending an investigation. The Respondent stated that on 22 March 2021 the Complainant was furnished with copy of the screenshot of the WhatsApp text together with the written statement of the allegation and the notes of the meetings of 15 and 16 March 2021.

Evidence of Respondent’s Store Manager A:

Store Manager A gave evidence that he received information about the data breach on 15 March 2021, that he received a written statement to that effect, that he met with the Complainant that day, read the statement in full and that the latter stated he had not requested the CCTV footage. Store Manager A stated that on the following day – 16 March 2021 - the Complainant accepted that he had requested the CCTV footage on being shown copy of WhatsApp messages/a screenshot on an ipad. Store Manager A stated that the Complainant stated he did so “for a laugh”. A stated that he received this new information – ie the WhatsApp message – from the car park’s Head of Security. A stated that following his preliminary investigation on 15 and 16 March 2021, he suspended the Complainant pending a full investigation. He stated that the Complainant was not represented at either of the meetings on 15 and 16 March 2021 but that he would have facilitated representation had it been requested by the Complainant. Store Manager A stated that the Complainant confirmed to him that he understood the implications and seriousness GDPR.

Under cross-examination Store Manager A agreed that other than the decision to suspend the Complainant there was no written outcome from his preliminary investigation. He also agreed that the written statement containing the allegation was in fact an investigation report written by the car park’s management and that this was the only statement of the allegation. He stated that he wasn’t sure if the particular Security Officer from whom the Complainant had allegedly requested the CCTV footage was ever asked for a statement but that he wasn’t interviewed by the Respondent. Store Manager A clarified the distinction between the Respondent and the management of the car park and he stated that he did not speak with the car park’s management or Security Officer prior to meeting with the Complainant on 15 March 2021. He agreed however that he did speak with the car park’s Head of Security on 16 March when he received the WhatsApp screenshot and with the Security Officer’s Manager but that he did not inform the Complainant about the latter conversation. Store Manager A stated that he had no access to the car park camera’s. He also stated that the Complainant’s position had since been made redundant.

Store Manager A also stated under cross examination that there was no allegation against the Complainant in relation to uploading or promulgating the CCTV footage online or on social media. Store Manager A stated that the issue for him was not social media but rather seeking to establish whether or not an employee of the Respondent had received CCTV footage from the Respondent’s car park to his personal phone. In that regard A stated that the basis for the Complainant’s suspension was a breach of GDPR. Store Manager A referred to the Respondent’s GDPR policy, to on-line training and to a letter of 19/8/2016 issued to employees which was signed by the Complainant. He stated that he had no involvement in the disciplinary process.

Evidence of Respondent’s Colleague Relations Partner:

The Colleague Relations Partner gave evidence in relation to her role in the investigation process which followed the preliminary investigation conducted by Store Manager A. In that regard she outlined that she had met with the Complainant three times – including a final outcome meeting. She stated that she was satisfied the Complainant had received appropriate training in 2016 in relation to Data Protection. The Colleague Relations Partner outlined the outcome of her investigation which was conveyed to the Complainant at an Investigation Outcome meeting of 19/4/2021 and by letter of the same date. The Colleague Relations Partner stated that she found that the Complainant had requested the car park Security Officer to send him the CCTV footage and that the Complainant’s responses to this allegation were neither acceptable or consistent. She also found that the Complainant had been afforded an adequate opportunity to read the screenshot of the WhatsApp message at the meeting on 16 March 2021 and that the Complainant’s objection to the ipad allegedly being 5 feet away was not sustainable. The Colleague Relations Partner found there was no evidence to support the Complainant’s contention that the WhatsApp screen shot was doctored nor any evidence to suggest the car park Security Officer had made a false statement. The Colleague Relations Partner concluded that the Complainant had not made any effort to report the data breach and that his conduct was “in conflict [with] the Company Data Protection Policy, and the Disciplinary Policy under the serious misconduct headings of Breach of Trust and Conduct which brings the Company’s good name into disrepute”. The Colleague Relations Partner recommended the matter proceed to disciplinary.

It was put to the Colleague Relations Partner under cross examination that there was no evidence the Respondent’s name was brought into disrepute, that there was no breach of the Respondent’s data policy as the Complainant had not transferred the CCTV footage to his own mobile phone and that her investigation had not probed the Complainant’s assertion that the WhatsApp screenshot was doctored. It was put to her that a conflict existed with the car park Security Officer’s manager as this person also worked for the Respondent. It was also put to her that she had not interviewed the car park Security Officer or any member of the car park security team as part of her investigation. The Colleague Relations Partner did not accept that her investigation was deficient in respect of any of these matters. The Colleague Relations Partner agreed that she relied on the Complainant’s admissions in the course of his meetings with Store Manager A but did not agree that she was prejudiced by this. She stated that A’s investigation was preliminary only in terms of considering whether there was a “potential breach”. The Colleague Relations Partner stated that she had not engaged a computer expert to inspect the WhatsApp screenshots.

Evidence of Respondent’s Store Manager B:

Store Manager B gave evidence that he had worked for the Respondent for some twenty three years and that he was appointed to conduct the disciplinary process. He stated that he met with the Complainant twice – ie at the disciplinary hearing and the disciplinary outcome meeting of 28 May 2021. B stated that the Complainant provided no evidence of the WhatsApp screenshots having been doctored nor he did he supply his own phone for inspection and he had deleted the WhatsApp messages. B stated that prior to deciding on dismissal he did consider whether a lesser sanction would be appropriate. B outlined his rationale for the dismissal which was also conveyed by letter of 28 May 2021. In that regard he stated that he found the Complainant’s conduct was totally unacceptable, that he had seriously misconducted himself and that the bond of trust placed in the Complainant by the Respondent had “been broken to such an extent that it is beyond restoration”.

Under cross examination B maintained he was impartial throughout and that his role was to decide the sanction. He stated that he did not speak with Store Manager A about the matter or the Colleague Relations Partner and nor did he interview the car park Security Officer or any of the car park team as their statements were considered at the investigation stage. Store Manager B stated that he accepted the outcome of the investigation. Under questioning B did not accept that the Respondent’s disciplinary policy was breached as a consequence of having a preliminary investigation – as he stated this was solely to ascertain information. Store Manager B identified various sections of the Respondent’s Data Protection Policy which he said had been breached and he accepted that these – or any – sections of the policy were not listed in his outcome letter. He also accepted that his outcome letter did not specify a finding in relation to the Complainant having requested the CCTV footage or not having reported that he had received it.

Evidence of Respondent’s Store Manager C:

Store Manager C stated that he had worked for the Respondent for some thirty five years and was appointed to conduct the disciplinary appeal. C stated that he had conducted several appeals in the course of his career and had previously overturned decisions to dismiss. He stated that the Complainant did not provide any new evidence or information that would have justified overturning the decision to dismiss  him. C stated that he conducted the appeal hearing on 22/6/2021 and issued the outcome on 12/7/2021 at an appeal outcome meeting and by letter. In reply to the Complainant’s grounds of appeal, C found that the Complainant had admitted to being trained on the Respondent’s GDPR policy and that notwithstanding, he had requested and received the CCTV footage and had not reported this. B found this amounted to gross misconduct and a breach of the Respondent’s GDPR policy and he concluded that “Taking everything into account, the decision to dismiss you from your employment on the grounds of “Breach of Trust”, “Breach of GDPR” and “Serious Gross Misconduct” was appropriate…”. C also rejected the appeal ground that the Respondent’s name was not  brought into disrepute and in this regard, he found that the Respondent had been “compromised….in relation to an individual’s right”. 

Under cross examination C confirmed that he had not interviewed or met with anyone else in the course of the appeal process. It was put to him that the Respondent’s GDPR policy was vague which he did not accept though he accepted he hadn’t referenced any particular sections of the policy. He stated that he was aware the Complainant did not have a prior disciplinary record and that in his view the Complainant had accepted he requested the CCTV footage at the meeting on 16/3/2021 but not since. C also stated that he was particularly persuaded to dismiss because the Complainant had not reported the CCTV incident and had received GDPR training.

It is the position of the Respondent that it has demonstrated a substantial reason for the Complainant’s dismissal, that it complied with fair procedures throughout including affording the Complainant representation at each stage and that its decision to dismiss was fair and reasonable. The Respondent also submitted that the Complainant had entirely contributed to his own dismissal.

The Complainant outlined his career as a Security Officer with the Respondent and his rate of pay. He explained that a separate security firm was in charge of the Respondent’s car park security and accordingly operated a different security camera system. He stated that he only had access to the Respondent’s CCTV.  The Complainant stated that he asked the car park Security Officer about the incident which occurred in the car park on 8 March 2021 and that the latter replied he would check the cameras and later he sent the footage to the Complainant. In this regard, the Complainant stated that he received the excerpt of the car park CCTV footage on 9 March 2021, that he watched it and then deleted it.

The Complainant stated that at the meeting with Store Manager A on 15 March 2021, he explained that he had not requested the CCTV footage. The Complainant stated that he explained that the car park Security Officer sent the footage to his personal phone via WhatsApp “in a private chat” and he/the Complainant had received the footage.

The Complainant stated that he was not furnished with a copy of the screenshot of the alleged WhatsApp messages either prior to or at the meetings on 15 and 16 March 2021 and was only shown them on 16 March momentarily and from a distance. Neither was he furnished with the report compiled by the car park management team prior to the meetings of 15 or 16 March 2021. The Complainant stated that on being shown the screenshot his immediate response was “don’t recall requesting footage” and that on being pressed he stated that “I don’t remember that, obviously I remember talking to him but I must have”. The Complainant stated that at this meeting he was also accused of sharing the data on social media – which he denied. The Complainant stated that after the meeting on 16 March 2021 and on receipt of copy of the screenshot, he consistently denied requesting the footage. The Complainant also maintained that the screenshot was inaccurate and in this regard he pointed to the battery bar on the screenshot and explained how the WhatsApp message dates were inconsistent and recorded incorrectly.

The Complainant outlined what occurred at the investigation, disciplinary and appeal stages and stated that he was not afforded an opportunity to meet with or question the car park Security Officer or any member of the car park team. He stated that it was never made clear to him what aspect of the Respondent’s Data Protection Policy had been breached nor how there had been an alleged breach of trust or how the Respondent’s name had been brought into disrepute. In this regard he maintained there was “a disconnect between the allegations made against [him] and the charges brought against him…”. He stated that the reason for his suspension and the investigation were only vaguely described. He also stated that he queried the accuracy of the screenshot and why the Respondent had not investigated this. Further, he maintained that in circumstances where he did not share the CCTV footage no damage to the Respondent’s reputation had occurred.

The Complainant accepted that he was offered to have a representative attend the meeting with him on 15 March 2021 but he stated this offer was not made for the 16 March meeting. He stated he had no prior disciplinary record.

Under cross examination the Complainant maintained that he had not requested the CCTV footage but he accepted that the Colleague Relations Partner and Store Manager A thought he had. He stated that he indicated he had requested the footage at the meeting on 16 March after he saw his profile picture on the screenshot but this was because he felt “pressurised” and “pushed into a corner” and was also before he received hard copy of the screenshot. Under questioning the Complainant accepted he had not disputed the minutes of the meeting of 16 March. He also accepted that he had signed the Respondent’s letter of 19/8/2016 in relation to GDPR policy. Under questioning the Complainant also accepted that he had not put forward evidence of how the screenshot was “doctored” as claimed by him.

In answer to the question as to why the Complainant didn’t report either the incident of 8 March 2021 or report having received the footage, he stated that he didn’t realise the footage had been uploaded online until the night of 9 March 2021 after he had deleted it. However, the Complainant accepted that he should have reported the incident.

It is the position of the Complainant that the disciplinary process was flawed, that the first preliminary meeting effectively determined the outcome, that the sanction of dismissal was disproportionate, that the Respondent's policies did not identify the conduct complained of as gross misconduct and that in all the circumstances the dismissal was unfair and unreasonable.

CA-00045156-001 – Unfair Dismissal:

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

“dismissal”, in relation to an employee, means—

a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee……”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4) of the Act prescribes the circumstances where a dismissal may be justified:

6 (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 ……

(a)    the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6 (7) of the Act provides that in determining whether a dismissal is unfair, regard may be had:

“(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…..”

Section 14(1) of the Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Sections 7 (2) of the Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14….or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,….”

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that it acted reasonably, that it acted in accordance with its disciplinary procedure and/or relevant code of practice and that the reason for the dismissal was substantial and/or within the parameters of Section 6(4).

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the poor performance or conduct of an employee and at the same time, afford the employee the opportunity to answer any allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters.   I have summarised the requirements of SI 146/2000 as follows:

·        To comply with the general principles of natural justice and fair procedures;

·       That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·       That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·       That generally the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

In the Supreme Court decision in Iarnród Éireann/Irish Rail V McKelvey [2019] IESC 79, Charleton J. made the following comments about the conduct of a disciplinary process:

“Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal….. Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her]…..”

Further to the above principles, it has been well established in case law that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer. Rather the focus is whether the decisions arrived at are rational, reasonable and based on the information available.The Labour Court summarised the correct approach in the case of Clancourt Management Ltd T/A Clancourt Management V Mr Jason Cahill [UDD2234], where it stated:  

“In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? .....”

I have carefully considered all the sworn evidence, submissions, documentation and case law cited in relation to the unfair dismissal case. For the most part I am satisfied that neither the facts nor the sequence of developments are in dispute.  Accordingly, against the foregoing backdrop of legislation, evidence, submissions and case law cited, I make the following conclusions:

-          It is the position of the Respondent that the investigation and disciplinary stages were conducted in accordance with company procedure and with all the benefits of fair procedures. I have considered the Respondent’s disciplinary policy of August 2020 arising from which I am concerned that the meetings with the Complainant of 15 and 16 March 2021 essentially constituted a preliminary investigation which stage is not provided for in the disciplinary policy. In this regard I note the following from the disciplinary policy:

You will usually receive a letter inviting you to an investigation meeting giving you 24 hours notice and a copy of this policy. In exceptional, justifiable and legitimate circumstances we may ask you questions with less than 24 hours notice which will later form part of the investigation….”

Whilst the policy gives examples of such exceptions, in my view in the case of the Complainant he should have been afforded at least 24 hours notice of the meetings of 15 and 16 March 2021 given the gravity of the matter at issue, given that the alleged wrongdoing had already occurred on 8/9 March 2021 and given the subsequent reliance on what transpired at those two initial meetings. Further the relevant policies were not furnished to the Complainant until 22 March 2021;

-          The Respondent’s Disciplinary Policy makes clear that an employee/the Complainant was entitled to be represented at investigation, disciplinary and at the appeal hearing and makes provision for paid suspension. I note from the minutes of the meeting of 15 March that the Complainant was offered representation for that meeting. This is disputed by the Complainant with respect to the meeting of 16 March – although it was recorded in the minutes of that meeting that representation was offered. I accept the Complainant should have been aware of his rights with regard to representation and indeed he availed of representation at the subsequent investigation, disciplinary and appeal stages. However, given the lack of notice for the meetings of 15 and 16 March, I am satisfied the time constraint militated against the Complainant in terms of his right to obtain appropriate representation for those two meetings;

-          The allegations against the Complainant were set out in writing in a document titled “INVESTIGATION REPORT” dated 12 March 2021 which was compiled by the car park security team. This was not furnished to the Complainant prior to the meetings of 15 or 16 March 2021. Nor were the screenshots of the WhatsApp messages though the Respondent would have known from this Investigation Report that such screen shots existed since the Security Officer stated in the Report “I took the footage and send to Barry via WhatsApp as per his request. On the other side as safety, I took screen shot as proof that he asks for this footage”. I am satisfied the Complainant was entitled to this written documentation prior to meeting with Store Manager A and the Colleague Relations Partner on 15 and 16 March 2021 and that it was not sufficient just to read the Investigation Report to the Complainant at the meeting on 15 March or to show him the screen shots on an ipad at the meeting on 16 March;

-          The Complainant was not afforded an opportunity to directly challenge the “INVESTIGATION REPORT” dated 12 March 2021. At no stage in the course of the investigation or disciplinary process was a meeting with the car park security team arranged nor was the Complainant afforded any opportunity to question the car park Security Officer or any member of the car park team involved in compiling their Investigation Report. I am satisfied this placed the Complainant at a disadvantage in terms of fair procedures and limited his ability to challenge the evidence against him;

-          In terms of specifying the allegations against the Complainant, I note that the letters to him of 22 March and 7 April 2021 stated that the purpose of the investigation meeting was to obtain information concerning an allegation that he had requested CCTV footage be sent to his personal phone, that it was alleged the footage had not been requested for any legitimate business reason and to consider an alleged breach of the Respondent’s Data Protection policy and its Disciplinary Policy under serious misconduct. I note that the Respondent’s Disciplinary Policy specified at paragraph 13 examples of gross misconduct which included breach of Respondent policies/procedures and bringing the company’s name into disrepute.  Whilst I consider that it would have been fairer and more transparent if the specific sections of the Respondent’s policies were identified, on balance,  I am satisfied the Respondent’s letters of 22 March and 7 April 2021 sufficiently appraised the Complainant of the case against him;

-          Whilst the Complainant disputed that he requested the CCTV footage, it is not in dispute that he received it and did not report this. For its part the Respondent concluded that he had requested the footage and in my view, it was open to the Respondent to reach such a conclusion. It is also not in dispute that the Complainant did not upload the footage on social media and I am persuaded by his evidence that he deleted the footage immediately after receiving it on 9 March 2021. Notwithstanding the concerns raised by the Complainant about the authenticity of the WhatsApp screenshots and his other statements – for example - that WhatsApp messages are regularly shared amongst staff and that he had considered the footage didn’t arise from any of the Respondent’s store cameras, I am satisfied the Complainant should have been aware of the gravity of the allegations against him and the consequences of his having received such CCTV footage to his personal phone and not reporting this to the Respondent.  In saying this I have taken into account that the Complainant received training on the Respondent’s Data Protection Policy and that he had signed a letter on 19 August 2016 – copy of which I was furnished – which stipulated that “Images collected by CCTV should never be transferred onto personal phones”.  Further I note the Respondent’s CCTV guidelines prohibited “taking photographs or other recordings of any surveillance footage on their own cameras, mobiles or other devices”. In all the circumstances I am satisfied the Complainant himself significantly contributed to the state of affairs which brought about his dismissal;

-          The Complainant had over sixteen years unblemished service with the Respondent. Whilst I note that the decision makers at the disciplinary and appeal stages stated that they considered if a lesser sanction than dismissal would suffice, I am concerned that the Complainant’s length of service was not given sufficient regard.

In light of the foregoing, I find the Respondent has not discharged the burden of demonstrating that the Complainant’s dismissal was procedurally fair, however, I also find that the Complainant  contributed to his own dismissal.

CA-00045156-002– Minimum Notice:

Section 41(6) of the Workplace Relations Act [2015 - 2021] provides that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The Complainant argued there was no requirement for this complaint to be stated expressly as it was part and parcel of his unfair dismissal claim. The Respondent objected to this and stated that the Complainant’s last pay date was 28 May 2021 as per the letter of dismissal to him of same date which advised he was being dismissed with immediate effect.

Having considered this matter, I find that the Complainant did not reference or indicate a potential minimum notice complaint in his Complaint Form received by the WRC on 13/7/2021. From my consideration of the documentation I am satisfied the first time this complaint was articulated was in the Complainant’s written submission dated 1 April 2022 which was emailed to the WRC on 21 November 2022.

Having regard to the foregoing I find that the complaint with regard to minimum notice is out of time as it should have been submitted to the WRC within six months of the cause of action accruing – which allowing for the maximum eight weeks notice – would, in my view, bring the cause of action limit date to 23 July 2021 – ie eight weeks after the dismissal. Clearly the date of receipt of this complaint/ie 21/11/2022 was outside that time limit. Accordingly, I do not have jurisdiction to decide this complaint.

CA-00045156-001

For the reasons outlined this complaint is well founded.  I decide that compensation is the appropriate remedy. Section 7 of the Unfair Dismissals Acts[1977 – 2017] provides for payment “of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration ……) as is just and equitable having regard to all the circumstances”. Financial loss is defined  “….as including any actual loss and any estimated prospective loss of income attributable to the dismissal ….”. Accordingly, I am obliged to take account of the measures adopted by the Complainant to mitigate his losses. In addition, Section 7 of the Act provides that in determining the amount of compensation I must have regard to the extent to which any financial loss was attributable to “an action, omission or conduct by or on behalf of the employee”.

The Complainant stated that his gross monthly salary was €3,226. He stated that he was seeking €1488.92 in respect of the two weeks following his dismissal. He obtained new employment in June 2021 and he outlined his various employments since his dismissal and that he suffered a reduction in in total loss of earning to the value of approximately €20k. The Complainant also sought compensation in respect of a potential future loss of redundancy which he said he would have been entitled to in or around 2023 had he not been dismissed. In all the circumstances and considering his contribution to matters, I hereby award the Complainant €7,500 to compensate him for his loss of earnings arising from the unfair dismissal. I consider this amount just and equitable. This amount is subject to such statutory deductions as may apply.

CA-00045157-001                                                                        

This complaint was withdrawn in the course of the adjudication hearing. 

CA-00045156-002 Minimum Notice

For the reasons outlined this complaint is not well founded.

Unfair Dismissal, Fair Procedures