ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002016
Complaint(s)/Dispute(s) for Resolution:
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-00002662-001 | 17/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00002662-002 | 17/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002662-003 | 17/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00002662-004 | 17/02/2016 |
Date of Adjudication Hearing: 31/05/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 6 of the Payment of Wages Act, 1991 and or Section 27 of the Organisation of Working Time Act, 1997 and or Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
It should be noted that a request for further particulars from the Respondent was made at the hearing and confirmed in writing on the 21st June 2016`. Such particulars did not come to my attention until early September 2016.
Complainant’s Submission and Presentation:
I received a final written warning in connection alleged breach of cash handling procedures. There are no prescribed cash handling procedures and frequently we would cover any shortfall in cash from our own pocket. We were permitted to use cash received from customers to defray work expenses for fuel, food and other sundries. In this particular situation (4/12/15) I tendered my own credit card for a shortfall of €20.00 with the reconciliation docket for the express purposes of repaying the amount. I told the company at the time that I had used the cash for my own use which my colleagues & I had done previously. Notwithstanding this I was summoned to an investigation meeting on 15/12/15 and disciplinary action was imposed resulting in a final written warning. This took place on or about 23 December 2015 one day before the normal closure of business over the Christmas period. I was denied my contractual and legal entitlements to annual leave. I had previously booked my annual leave in September, 2015 only to be told that it was unauthorized and I had to cancel it suffering financial loss, inconvenience and expense as a consequence. However, I agreed and discussed my annual leave requirements for the Christmas period with management in September, 2015 having procured consent from my colleagues to cover the shifts that I was required to work over the Christmas period. This was known to management at the time. I was expressly told not to record my cover on the roster as this would set a precedent for others. I booked a holiday specifically to propose marriage to my fiancée. I also had to ensure that I took my annual leave before the expiration of the year as the conditions of my contract of employment did not permit it. On the same day that I received a FWW for the alleged cash handling issue I was immediately handed a separate letter entitled 'unauthorized absence' dated 23rd December, 2015, stating that my intention to take annual leave is unauthorized and were I to take it would result in disciplinary action. The effect of this letter made me very shaken and stressed. I attended my GP on the following day 24/12/15 who certified me unwell for 2 weeks from 27/12/15 - 15/01/16. Upon my return to work I was summoned to another investigation meeting on 21/01/16 and suspended. I raised a grievance with the Respondent on 25/01/16 concerning (i) First FWW (ii) failure to pay my contractual rate for attendance bonus since 01/2011 and (iii) my holiday entitlement. This was responded to on 25/01/16 none of these issues were upheld. I was very stressed and knew that the Respondent was fixed on dismissing me. I could attend a disciplinary meeting scheduled for 26/01/16 and was dismissed on 27/01/16 I was dismissed unfairly |
I did not receive his contractual entitlement to €77.21 attendance bonus. I had worked for Respondent Services for almost four years and had only received a contract of employment in December 2015 in breach of the Terms of Employment (Information) Acts. I only become aware that I was receiving below par for this allowance and had made protestations to management in connection therewith once I received the contract in December, 2015. My colleagues had confirmed to me that they had received the allowance for a long time. I was not disabused of my entitlement of same and I was told that this would be investigated by the accountant and a solution would be offered. This has never come to pass. I received in one week only the €77.26 in December, 2015 and in other weeks preceding that I received €45.00. |
I was not permitted to take my legal entitlement to annual leave on 2 occasions when I did so with the knowledge and consent of my employer I was dismissed. This dismissal constitutes penalization pursuant to S 26 of the Act. |
I worked for the Respondent for 4 years. I received a contract on 30/11/15 in breach of S3 of the legislation |
Summary Respondent’s Submission and Presentation:
The Respondent submitted as follows
Unfair Dismissals Act, 1977 CA-00002662-001
The Respondent submitted that the Complainant was dismissed for Gross Misconduct – arising mainly from
Failure to adhere to the Company’s cash handling policies and alleged fraud
Failure to comply with the Company Annual Leave policy especially where it concerned Annual Leave Cover for the Christmas Holiday period.
A Disciplinary Hearing had been held on the 18th December 2015 and a final written warning had been issued.
The Complainant had been issued with a letter on the 23rd December 2016 advising him that if he proceeded with his stated intention to take Annual Leave during the Christmas season 2015 it would be subject to disciplinary action that could lead to his dismissal. The Complainant had proceeded to take Annual Leave over the disputed period.
A Disciplinary Hearing was held, in the Complainant’s absence on the 26th January 2016 and the Complainant was dismissed, for failure to follow reasonable management instruction, on the 27th January 2015.
In summary the Complainant had showed blatant disregard for the Respondent Company policies and procedures leaving them with little choice but to terminate his employment.
Payment of Wages Act Claim CA-00002662-002
The Respondent maintained that the Complainant had received all his entitlements. The € 77.21, the subject of the dispute, was a gross weekly subsistence payment. In oral evidence the Respondent maintained that the firm’s Accountant had introduced a Nett Pay arrangement, with Revenue Approval, for the weekly subsistence giving all employees € 46 and the Complainant had received this nett payment. He, the Complainant, was confused between the Gross and the nett figures. Additional written evidence was requested from the Respondent on this point.
Organisation of Working Time Act, 1997 Claim CA-00002662-003
The Respondent maintained that all Annual Leave entitlements were paid , the Complainant had not followed correct Company procedures in relation to the taking of his leave and had done so in direct contravention of a request from the Respondent in relation to cover for Christmas.
The Respondent pointed out that the Complainant was seeking to have his Dismissal considered under both the UD Acts 1977 and the Working Time Act 1997
At the Oral Hearing it was agreed to litigate the Unfair Dismissal case under the Unfair Dismissals Act 1977.
Terms of Employment Information act 1994 CA-00002662-004
The Respondent did not furnish a Contract until 30th November 2015 despite the Complainant having been employed since January 2011. The breach was purely technical and the Complainant was fully aware at all times of his terms and conditions of employment from 2011 to 2015. The Complainant never requested a formal written contract during this period. He was at no loss or prejudice as a result of not receiving a written contract.
Finding and Conclusions
Section 41(4) of the Workplace Relations Act 2015 and/or Section 6 of the Payment of Wages Act, 1991 and or Section 27 of the Organisation of Working Time Act, 1997 and or Section 7 of the Terms of Employment (Information) Act, 1994 and or Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant sections / redress provisions of the stated Acts.
Issues for Decision:
Was there an Unfair Dismissal under the UD Act 1977?
Was there a breach of the Payment of Wages Act, 1991 and or Section 27 of the Organisation of Working Time Act, 1997 and or Section 7 of the Terms of Employment (Information) Act, 1994
Legislation involved and requirements of legislation:
The Unfair Dismissals Act 1977, the LRC Code of Practice - S.I 146 of 2000 and the other pieces of legislation referred to above emphasise the absolute need for fair procedures specifically the requirements for clear communication of all issues /evidence being considered to parties in advance of meetings/hearings, the need for representation , the need for careful consideration of all evidence in an unbiased manner by persons not directly involved in prior investigations and the need for an independent Appeals mechanism of any decision taken.
Decision:
Unfair Dismissals Act 1977 Unfair Dismissals Act, 1977 CA-00002662-001
It was clear that a dismissal had taken place. This was not contested – letter of the 27th January 2016 refers.
The decision as to whether or not this was an Unfair Dismissal rests on one main question
Question One - were there fair procedures as required by the Act and much subsequent case law. ?
The answer to question One is incontrovertibly no.
Fair procedures were not followed, the Disciplinary Hearing on the 26th January was held in the Complainant’s absence. There was no evidence of any outcomes from investigations being offered. There was no Right of Independent Appeal offered to the Dismissal decision.
The dismissal letter of the 27TH January 2016 stated that
“In the light of the above and your unacceptable behaviours identified through the process, I consider it is no longer productive to maintain the relationship and I confirm that as of today your employment with Respondent is terminated with immediate effect”
The “Unacceptable behaviours” were not specified to the Complainant.
Regarding the meeting itself, the letter of Suspension dated the 21st January 2016 referred to the suspension being made to allow an Investigation. It stated that, based on the outcome of the Investigation matters could precede to a Disciplinary Hearing. However by the next day a Disciplinary meeting for the 26th of January had been arranged. I find it impossible to believe that a full investigation could have taken place overnight.
The letter of Invitation to the Disciplinary Hearing (22nd January) stated that
“Having concluded our discussions the hearing will be adjourned to allow all of the evidence to be considered before any decision is taken regarding disciplinary action”
The Complainant had declined to attend the Disciplinary Hearing and had submitted a Grievance letter dated the 25th January. The Grievance letter from the Complainant of the 25th January (effectively setting out the Complainant’s side of the story) was not adequately considered as at the very least a reasonable reason to postpone the hearing of the 26th until it could be considered in full. The Complainant was not invited to meet with Management to discuss his Grievance letter.
In addition the personalities involved, the Management representatives attending the meeting of the 26th January ( the dismissal meeting) concerned with the decision were all centrally involved in all proceedings in dispute and as well, the purported investigations leading up to the hearings.
Accordingly for the above reasons the Dismissal was Unfair.
The supplementary question was to what extent did the actions of the parties contribute to the decision?
Here the answer is equally clear cut – the Complainant by his actions in relation to the Cash Procedures/Docket Handing Procedures was clearly in breach of normal Company procedures. It has to be said that these appeared to be of a somewhat loose nature. However his action in proceeding with his Annual Leave when clearly instructed not to do so was in flagrant breach of management instructions.
His defence of “Custom and Practice” in relation to the Cash Dockets was not convincing. The Respondent gave evidence of how this situation was a handled and even allowing for considerable looseness the actions of the Complainant in regard to using his private Credit Card was not convincing.
The allegation that he had agreed his leave with his direct superior in advance sounded plausible save for the fact that the key decision maker, the Managing Director, was unaware of the arrangement and had clearly instructed against it. The letter of the 23rd December, although written by the Operations Director, could have left no ambiguity in the mind of the Complainant the likely consequences of his taking the leave. The Christmas period was of vital significance to the type of service provided by the Respondents and the Complaint had to have been aware of the cover needs of the business.
Oral evidence for the Respondent was given by the Operations Director and the Managing Director. I found their evidence plausible but again indicative of a general looseness in procedures.
Accordingly and taking the above factors into account I find that the actions of the Complainant contributed to a factor of 50% to his Dismissal.
In redress I award 26 weeks pay ( 26 weeks ) reduced by a factor of 50% to give a final award of thirteen (13) weeks pay - €8,710 ( a weeks pay been taken to be € 670 as per the pay slips given in evidence) in compensation for the Unfair Dismissal. In considering the amount I noted that the employee obtained alternative employment in a similar position by May of 2016 albeit at a lesser rate of pay. The Complainant provided figures which suggested that his actual nett loss to the 31st May was in the region of € 4,000.
A consideration of Reinstatement or Reengagement did not arise as all employment relationships between the parties had irretrievably broken down beyond any repair.
Payment of wages Act Claim CA-00002662-002
The Complainant claimed that he was due €77.26 gross (as per original verbal contract) as a contracted attendance payment and the Respondent maintained, on oral questioning by me, that the payment was a nett figure of € 46:00 expenses. The suggestion was made that this was a possible arrangement made by the Respondent’s accountant with the Revenue.
Pay slips produced showed a weekly tax free payment of €46:00 for weeks from 07/01/2015 to 30/12/2015. The Respondent witnesses at the oral hearing were clearly confused as to the exact taxation and general background to this payment.
The Respondents were requested at the hearing and in subsequent correspondence to produce supplementary financial evidence to support their arguments here. A number of reminders were issued and a reply received on the 23rd August 2016. This correspondence did not come to my hand until some time later. The supplementary correspondence did not add much to clarification other than to show that a wide range of payments were made to different employees.
The facts were that a letter of Contract was issued on 1st December 2015 which quoted the rate of €77.26 as an Attendance Bonus. This Contract was intended to be a codification of the original verbal Contract dating back to 2011.
The Respondents contention that the rate quoted in the December contract 2015 was an “Administrative error” and could have no retrospective effect. In the light of the wide ranges of payments made across the workforce the error argument is an understandable contention. However the contract stated € 77.26 and no evidence was presented of any efforts to correct this figure save the fact that only €46:00 was actually paid. Unfortunately things came to ahead on other issues in the same December 2015 and efforts to correct or clarify the payment were not possible.
At the oral hearing the Respondents indicated that the Complaint had multiple skills and would have been entitled to a higher payment. On the list supplied ,after considerable prompting from the Adjudicator , it appear that there were three (3) employees out of 18 in total receiving the €76 payment. Nine (9) received the €45.
Until the Contract was issued on the 1st December 2015 the Complainant was in ignorance of his alleged entitlement to the higher rate.
In conclusion and taking the oral evidence of the parties and the response from the Respondents to the subsequent inquiries I came to the view that ,on balance the €46 tax free was probably the correct figure.
However in the light of the considerable confusion displayed by the Respondents in relation to this matter and the written contract dated the 1st December 2015 offering an Attendance Bonus of €77.21 per week to the Complainant I am awarding that the Attendance Bonus be paid for the period from 1st December 2015 to the date of termination of employment on the 27th January 2016 some 9 weeks. € 77.21 x 9 = €694.89.
The Payment of Wages claim is upheld.
Complaint section 27 of the Organisation of Working Time Act, 1997 CA-00002662-003
The Complaint here was of Penalisation/victimisation in relation to dismissal following the taking of the disputed Christmas Annual leave in 2015. It was agreed at the oral hearing that this claim was superseded by the Unfair Dismissal claim.
Complainant under the Terms of Employment (Information) Act, 1994 -CA-00002662-004
The Complainant did not receive a Written Contact until late 2015 despite having been employed since 27th January 2011.
It was accepted by the Respondent that this was a breach of the Act.
Accordingly I award one weeks pay € 670 as Compensation – being Compensation and subject to Revenue approval, this is tax free.
Dated: 13 October 2016