ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006755
A Sales Executive
Shane Healy, Healy O'Connor Solicitors
Brian Dolan, Advocate, Peninsula Group Limited
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 21/9/17 and 20/11/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant is seeking redress for an Unfair Dismissal and non-payment of notice. The Respondent has rejected both claims. The period of employment occurred from May 1, 2007 to October 20, 2016.
I am required to determine whether the Respondent has demonstrated that there were substantial grounds justifying the Complainants dismissal on the objective standard of a reasonable employer. The burden of proof rests with the respondent in terms of the first claim.
In the second claim, I am to determine whether the complainant had an entitled to a notice payment.
Summary of Respondent ’s Case:
CA-00009033-001 Unfair Dismissal
The Respondent operates an outsourced sales consultancy. the complainant had commenced employment on March 1,2013 as a Sales Executive. The Complainant was dismissed on 20 October, 2016.
On 23 August, 2016, the Respondents clients at the third-party company alleged that the complainant had been involved in the unauthorised removal of stock from one of their sites. An Investigation meeting followed on 25 August where the complainant advised that the issue surrounding the stock was a misunderstanding between himself, the Assistant Manager and he Stores Security Guard. the Complainant also confirmed that he had issued a credit note to cover the stock value “in a moment of panic and anxiety. He confirmed that this was at variance to the credit note policy. A Final written warning was applied to the complainant on 31 August, 2016.
Later in October, 2016, the complainant was again called to an investigation meeting around credit notes. the complainant confirmed that he was aware of the company policy regarding credit notes and stated that he knows that his actions were misconduct.
When the complainant was asked why he had not progressed this at line Manager level, the complainant state that “he knew it was something that would come back at him” the Complainant had at the early stages stated that it was a once off occurrence but later varied this to several credit notes. He was dismissed on October 20.
The correspondence stated:
I consider your explanation to be unsatisfactory because you were aware that signing a credit note is in breach of company Policy and you were never given authorisation to sign a credit note. I acknowledge that you failed to escalate the issue to management as it may have resulted in disciplinary action. However, should you have informed management in a transparent manner, then the maximum would only have been a written warning “
An Appeal followed on November 8, 2016. The Complainant sought an adjournment to allow him to arrange representation for the appeal. The Respondent affirmed that the disciplinary procedures allowed for representation by a fellow employee or Trae Union representative only. The Complainants Solicitor was permitted to make written submissions on his behalf.
On November 29, the opportunity to submit written representation was rejected by the complainant’s solicitor who advised that he complainant would not attend in the absence of his legal representative.
On 12 December, 2016 the Appeal was disallowed and the decision to dismiss was upheld.
Evidence of Mr ASM, Area Sales Manager
Mr ASM gave evidence over both days of the hearing. He outlined the procedure around credit notes at the company likened it to a cheque book. The procedure was explained to staff at team meetings. the Credit Note goes into the third-party management system and takes about three-month processing time.
Mr ASM managed the first Disciplinary issue from which there was no appeal. The issue of the credit note dated 10 June 2016 came to the attention of the company in October 2016. The Account Manager is meant to sign off on any credit note.
Mr ASM conducted the second Disciplinary hearing. The Complainant was approached with the company’s concerns about his personal sign off on a credit note. The Complainant submitted that he had felt under pressure from the third party and stated that it was a once off incident, for which he offered to pay. The Complainant was represented.
Mr ASM read the notes of the earlier investigation meeting to help him make an informed decision. He took a 40-minute break during the meeting to allow the complainant to reflect whether he believed that there may have been other credit notes in the system attributable to him?
The complainant confirmed that he may have signed two more to the value of 40-50 euros without authorisation. Mr ASM pointed to this inconsistency and compared it to other third party stores.
Mr ASM made the decision to dismiss the complainant on a face to face basis. He contended that he had secured enough evidence to make the decision and he sent out a letter in confirmation. He outlined that the Integrity and Professionalism of the company had been compromised when the complainant had not followed the procedures surrounding the credit note. Trust was broken.
During cross examination, Mr ASM confirmed that this was the first case he heard as his colleague Mr ASM 2 had handled the initial investigation. He was acquainted with the complainant but submitted that he could not have formed the view that he was a model employee. He outlined that “process was everything “and if 10% of staff did not follow that process “lock down” would follow. Mr ASM reaffirmed that during the first incident, the complainant was in breach of process and had not consulted with his line manager. He explained the Credit note process around warehouse returns and out of date goods within the third-party business. Credit notes are signed external to the respondent company. Mr ASM reaffirmed that staff were aware of the credit note policy as it had been presented at a meeting. He stated that he was not 100% sure whether staff had been informed that a breach of this process would place their job at risk.
There was a clear reference to the risks faced by the complainant in course of his final written warning. He agrees that there was no specific mention of the credit note in the staff handbook. Mr ASM submitted that the complainant ought to have consulted with his line manager as he would have had discretion had he been authorise by the line Manager.
The June 10 credit note came through from the third party to the Respondent. Mr ASM denied that the company had gone looking for it or that the company had any desire to get rid of the complainant. He stated that the complainant was not fired just because he wasn’t permitted to work for the herd party anymore. He denied pre-judging the issue.
Mr ASM submitted that if June 10 credit note had been a once off it would have settled on final written warning stage 2, the complainant had got an opportunity to raise matters during the 31 August Disciplinary procedure.
The Complainants representative challenged Mr ASM on how the complainant could have been aware that he was being accused of misconduct. Mr ASM responded in saying it was raised at tea meetings followed by the implications for activation of the disciplinary procedure in the face of a breach.
The Complainant was represented by a shop steward during the Disciplinary meeting. Mr ASM confirmed that there may have been a lag in processing the credit notes attributable to the third-party company from 6 weeks to 3 months. He rejected the premise that the complainant had not benefitted from the transaction and referred to the objective resting on compliance with the process being paramount for over 100 people, if everyone deviated, then the business would cease to exist
Evidence of Mr ASM 2 (Area Sales Manager)
Mr ASM 2 outlined that he was the complainants line Manager. He explained the third-party policy on returns notified in email format in early 2016. He passed on this information to staff with monthly refreshers. The Product recall was to be followed with care.
During cross examination, Mr ASM, Mr ASM 2 referred to the first Dictionary as an isolated case. He was responsible for 17 on his team a preferred group information sharing rather than individual email contact. In answer to the complainant’s representative question on whether details of the credit note process should have been incorporated into the staff handbook, Mr ASM2 indicated that staff were aware that noncompliance triggered the Disciplinary Procedure. He stated that he had not been sought out by the complainant in his capacity as line Manager. Ig he had been, he could have supported.
Evidence of Ms AC (Accounts Controller and Appeal Manager)
Ms AC gave evidence that she had worked in several large companies before the Respondent company. She confirmed that staff had secured the handbook following the Transfer of Undertakings process in March 2013. She confirmed that she was approached to hear the appeal of the complainant’s dismissal on 11 November.
She had sought to schedule the Appeal Hearing but was asked to reschedule. She was aware of the sequence of events which led to dismissal, Final written warning and Dismissal. She understood that she was being asked to consider the facts surrounding the credit note and uplift policy. Mr AC was aware that the company was very firm on process. She received the letter of appeal submitted by the complainant. She understood that the complainant was a member of a certain Union. Ms AC sought written submissions from the complainant.
During cross examination, Ms AC confirmed that the complainant had requested Legal representation for the Appeal but the right to representation centred on a fellow employee or Union Represented.
Ms AC confirmed that the complainant had received natural justice in addressing the four points of appeal lodged. The Complainants representative requested a response to the apparent lack of inclusion of the Credit Note Policy in the description of gross misconduct. Ms AC confirmed that the Respondent was unable to hold a uniform Credit Note Policy as practices change in the commercial reality of the business.
She confirmed that the complainant had not made an appearance at the Appeal nor did he submit a written submission outside the four points of Appeal. She confirmed that the procedures used were fair and just. The question of representation was an internal company matter but there was no provision for legal representation. She found no basis on which to reverse the decision to dismiss the complainant. Ms AC denied that the complainant has lost out on a full rehearing of the case.
CA-00009033-002 Payment of Wages Act ,1991
The Complainant sought twelve weeks’ notice period and submitted that the complainant was entitled to the notice arising from his contract.
Summary of Complainant’s Case:
The Complainants Solicitor gave an outline of his case. The Complainant had worked for over 18 years as a representative, 9 years with an associate company and 9 years with the respondent. He worked a 40-hour week a received a gross monthly salary of 2905.70 euro. He had been described by the Respondent as a Model employee. The Complainant has not worked since Dismissal. He submitted evidence of loss and mitigation.
There were no issues with his performance prior to the involvement of a third-party company in his employment relationship. The Complainant had attended the site of the third-party company during his work. He had been there 15 minutes when through a breakdown in communication, he became involved in an issue surrounding stock and a credit note, which culminate in a Disciplinary hearing, from which he received the sanction of a Final written warning.
The Complainants Solicitor submitted that what followed was a fishing expedition on behalf of the respondent which unearthed some credit notes from June 2016. There was no specific written credit note policy. The Complainant was suspended and eventually dismissed from his employment.
The Complainant was not permitted legal representation during the appeal of this decision despite numerous requests.
The Complainants representative raised some apprehension on the sequence of events surrounding the credit notes as the complainant had previously admitted that he written other credit notes and no issue had arisen.
The Complainants representative raised several procedural issues
1 They submitted that it was unfair that Mr AM would sit in on both Disciplinary hearings and chair both Disciplinary hearings and contended that the case was pre-judged.
2 The duration of the first Disciplinary process was 7 days and the second process lasted 10 days. It was submitted that the complainant had been railroaded.
3 The Company did not have a Credit Note Policy and the complainant was unfairly dismissed in this vacuum. This was disproportionate.
4 The Complainant had been “set up”.
5 The incident at the heart of the Disciplinary procedure was not defined in the realm of gross or serious misconduct
6 The Complainant had acted honestly in the context of the first Credit Note issue, he did not benefit from the transaction, but was acting under duress from the third-party company.
Evidence of The Complainant:
The Complainant outlined that the company covered beverages, Pet Food and Confectionary. He submitted that there were less calls from convenience stores and more calls from multiples where he was aligned. The 2013 transfer to the largest Food Company was difficult and a lot of people left because of the insecurity. There had been a lot more flexibility in the earlier company and the sales team had been given stock for returns and credit notes were not an issue. He began to feel constrained in the new system which he felt was less beneficial to customers. He understood that he wasn’t to write a credit note but Managers were very much “on top of you” and you weren’t going to contact a line Manager every two minutes for approval.
The Complainant recounted the antecedence to the first Disciplinary matter where he presumed that the Acting Store Manager had authorised a release of stock for a coffee morning. He understood that the issue had been contained at the third-party store and when he returned the stock, he thought that was the end of it. He “didn’t bother “alerting his line Manager.
He sought out a Manager at the third party and referenced the events involving the security manager and understood that the store was checking things out. The following Wednesday he learned of the third-party complaint against him. He recalled the first Disciplinary Investigation. He received a phone call from Mr ASm2 informing him that while he was to be disciplined, he could return to work on 29 August without servicing the third party. He thought he would receive a verbal warning but a Final written warning followed. He did not realise the matter was being viewed as seriously as it was by the company. He did not request representation.
The Complainant was uncertain as to why he did not lodge an appeal to the sanction of final written warning. He states that it was a shock and he had been informed that if he ever did anything of the way, his job would be gone.
The third-party business was a huge proportion of the business and he tried to get back there. He submitted that the respondent took it upon themselves that they couldn’t have him working part time. It was hanging over his head.
Some five weeks later, Mr ASM2 showed him the June 10 credit note which he did not remember signing. He understood this was prompted by his exclusion from the third-party business. The complainant outlined a pressure point in the system relieved by an occasional credit note, which in turn created some breathing space. No one had ever approached him regarding credit notes being an issue and nobody told him that he could lose his job because of credit notes. He participated in a second investigation. He queried representation and submitted that Mr ASM told him that he could speak for himself. He only notification of the Disciplinary gearing was by email.
On 20 October, he travelled to Portliest to the meeting, he was shocked to be dismissed and faced with mention that Gardaí could be called. He confirmed that he had not sought a lesser sanction. He returned his lap top and car the next day.
The Complainant submitted that he required legal representation for the appeal as no colleague would come back. The Complainant continues barred from the third party and believed that his reputation had been unfairly tarnished. He had not worked since dismissal. He had been offered a 4 hr job last July.
During cross examination, the complainant confirmed that he had not raise a grievance regarding his unease on moving across to the respondent company. He understood that he had a certain degree of autonomy/discretion regarding the Uplift process. The Complainant submitted that he third party store manager had approve the stock in August. If the third party divested stock, then that didn’t phase the sales team but despondent representative put the issue that the Respondent did care about the stock value being replaced. The Complainant confirmed that he understood that the contravention on the credit note was wrong to which the complainant replied that he thought it was worse, not just the credit notes. The Complainant confirmed that as far as he was aware, the third party had not investigated the issues raised.
The Complainant addressed the 10 June credit note and affirmed that his reliance on credit notes was once in a” blue moon” and did not amount to anything untoward. He mentioned that he had discretion but confirmed that he had not advanced that earlier in the proceedings. He confirmed that he was a member of a certain Union. He denied misrepresenting himself, saying that June 10 credit note was the sole evidence that he was shown at the time.
In relation to representation at appeal, the complainant stated that he had no contact with shop stewards and he had not asked other employees or the Union itself. He was uncertain as to why he did not submit a written appeal. He had not attended the appeal.
He confirmed that his work at the third-party business constituted 99% of his and he had been barred from there from the time of the Final written warning. He confirmed that there were 50 -100 employees involved in the Respondent subsidiary company.
The Complainant confirmed that he had recently commenced a college course in September 2017.
The respondent rejected the claim for notice, given that the complainant was dismissed by the respondent.
Findings and Conclusions:
I have carefully considered both parties written and oral submissions in this case. The Respondent has submitted that the substantial reason governing the complainant’s dismissal arose from his conduct surrounding a credit note in the wake of an application of a Final Written Warning. The Complainant has taken issue with this and submitted that the decision taken was both unfair and disproportionate. The Complainant sought the remedy of compensation if successful in his claim.
My role in this case is to ascertain whether it was reasonably open to the respondent to make the decision it made rather than one the EAT /The Court would have taken. AIB V Purcell 23 ELR 189. This judgement drew on Denning J in British Leyland UK ltd V Swift  IRLR 91
“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 “
From the outset, I found it important to capture the complex back drop to this employment the company is based in the UK and has structured its 2015 handbook to fit the Irish workforce. Both parties had accepted that a Transfer of Undertakings occurred in 2013. However, the complexity materialises in the analysis of the interface with the business that I have referred to as a third party during my writing of this case.
The Respondent functions as an Outsource Sales Consultancy. I have reviewed the Respondents six core values, and understand their objectives, which were clearly shared by the Respondent Management Team. I have also reviewed the complainants contract of employment and staff handbook, both of which were comprehensive documents but were virtually silent on procedures on what to do when something went wrong on an external site while working for the Respondent company. The facts of this case arose from that very scenario and I have found that there were three parties actually involved in the case
The Respondent, The Complainant and the Third Party.
I understand and appreciate the commercial trading reality which served as the back drop in the case, however, the employment documentation before me centred on two parties except for the “Uplift Process “which emanated from the third party. I have found a clear lack of integration between this process and the complainant’s employment documentation. I have taken on board that the process was widely circulated amongst the respondent staff but there was a lack of cohesion with the Respondent policies and procedures.
Both parties made extensive submissions on the first Disciplinary incident surrounding the “cereal and coffee “stock. This resulted in a final written warning for the complainant. There was a rider on this warning which requires detailed examination at this juncture.
The Complainant was informed on 31 August 2016 that he had been blocked from all third party operated sites. The company indicated that they would seek to persuade a reversal of that decision and the complainant was to be contacted once they had made representations to the third party. In the absence of a contingency, the company flagged that that the complainant may face termination of employment due to third party pressure. The Complainant did not appeal the Final Written warning and returned to work. I found that the complainant was somewhat disengaged at this point as the company had alerted him to a very grave vista, that of his job being at risk. I appreciate that he was approaching the activation of the Disciplinary procedure from a base of zero, however, the tone of the Respondents letter was unambiguous and deserved more reflection by him.
Some 7 weeks later, the complainant was faced with another matter of concern involving a credit note dated June 2016. He was informed that the Respondent was considering these allegations through the prism of serious misconduct.
The Respondent activated the Disciplinary procedure on foot of the credit note, an investigation and attendance record. The Complainant was clearly on notice of a potential for his dismissal.
I have considered the company grievance and Disciplinary procedures and established
“The Company is committed to ensuring that all grievances and alleged disciplinary offences are fully investigated. They may entail carrying out interviews with the colleague concerned and third parties such as witnesses, colleagues and managers as well as analysing written records and other sources of information “
I found the records of October 12 to be substantially short of this objective. On enquiry, I established that the third party had not investigated either of the instances reported of. The Complainant did not have the benefit of an Audit report, witness statements or Manager reports. Of course, it was open to the complainant to submit a request for these.
I did not establish that the Respondent had elaborated on what they judged serious misconduct to be. In Lennon V Bredin, MN160/1978 and EAT case, serious misconduct was referred to as:
“An exemption applied only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer: we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category “
I was struck by the fact that the Complainant appeared somewhat un decided on representation in advance of the Disciplinary meeting on 20 October 2017. I found this unusual given the gravity of the situation.
However, I wish to pause here to consider what I consider to be a central issue in this case, that of Third Party Pressure in an employment situation. The Respondent had informed the complainant that his exclusion from the third-party sites arose because of Third Party Pressure and advised that further lobbying would have engaged him to ameliorate that outcome. The Respondent did not outline the extent of this third-party pressure and did not outline that there was a genuine threat to their business. I did not establish details of the lobbying exercise outside one letter from August 2016.
In Morrigan V Home Counties UD 904/1984, the EAT commented that:
“The job of an employee cannot be at risk on the mere whim of a third party to the employment relationship “
This case involved a contract cleaner, whoa ha featured in a newspaper article where her family were linked to drugs and the secretary of the hospital contacted the employer stating that it would look bad having the complainant on the staff. There was an inference that the contract might be at risk.
The EAT went on to hold that more incumbent on him to defend her interests, vindicate her good name and protect her livelihood. They awarded re-instatement.
It is necessary that an employer is expected to show that it has investigated the reasons for the pressure being exerted by the third party, if the enquiry revealed no valid reasons for the pressure, the employer should try to persuade the third party to change their minds. The threat to business must be real and not remote. This is addressed in Chapter 18 of Redmond on Dismissal Law, Des Ryan B.L
In the case of Employee V Employer UD 1181/2010, Cavan County Council had received a complaint from the RSA on an employee’s test for roadworthiness of commercial vehicles, following which a licence was suspended. The EAT held that the dismissal was unfair because the employer had accepted the suspension as a virtual dismissal and the complainant in the case was not provided with a full investigation and opportunity to save his job.
I have read the Respondent Disciplinary procedure and It was clear that the Heading on October 20 was taken very seriously by the Respondent. On reviewing the notes, I found that the complainant’s representative did not record a contribution at the meeting. I accept that the Complainant was very shocked in the wake of the meeting. I note that he offered to pay for the discrepancy.
The Complainant was on a 12-month final written warning, and by his own admission, the third party posting formed 99% of his work. The credit note was dated June 2016 and in my opinion pre-dated the application of the final written warning from which a defined action plan had been launched. I find that this latter-day disclosure was badly timed.
I appreciate that an administrative lag surrounds credit notes, however the period of 4 months had elapsed. I have found that the Respondent was unreasonable in not addressing this through the action plan. The Complainant had already been dealt a strong blow through the final warning, this issue began to take a catastrophic pathway for him. I did not get a sense that the Respondent had submitted any filter to the third party and seemed to accept that the exclusion order was non-negotiable.
I have some difficulty in how the disciplinary hearing progressed. With the early adjournment of the meeting some 15 minutes into the process. On resumption, the complainant was asked a leading question on the possibility of the “once off “credit note being linked to other credit notes? The Respondent posed the question,” if we were to do an audit……. “I would have expected a reasonable employer to have completed an Audit and put it to the subject of a Disciplinary meeting. I have formed the conclusion that this meeting served as a mere formality and insufficient regard was taken of the effect a dismissal might have on the complainant. Dismissal should always be viewed as the last resort due the life changing impact which may unfold.
In Bank of Ireland V Reilly  IEHC 241, Noonan J. gave some guidance on assessing the reasonableness of an employer’s conduct in relation to a dismissal. He contended;
“.. that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.”
I accept that the complainants handling of the credit note proved challenging for the respondent, who submitted that trust had been breached. No regard was passed to the complainants offer of rectification by re- payment. The Respondent did not demonstrate that the company’s trading relationship was threatened by the complainant’s actions. I note that the Respondent had no reported difficulties in a multitude of other third party stores.
I have a grave difficulty with the speed with which the decision to dismiss was taken and communicated to the complainant. Mr ASM understood that there were no options open to him outside dismissal. I have reviewed Stage 4 Dismissal in the Staff handbook and find that “dismissal will normally result” if conduct post final written warning is still satisfactory. It is not an obligatory action. There were options short of dismissal open to the decision maker. I have retained some concern regarding the dateline of the credit note predating the final written warning.
However, I note that the Decision maker consulted with the Human Resource Dept. during the first break. There was no other recorded breaks. I note that it is mandatory for a decision maker to consult with HR prior to taking a decision to dismiss. There was no other reference to collaboration after this break, which points to the decision taken to dismiss being formulated without hearing all the complainant’s submissions. This is a cardinal error. I appreciate that the complainant did not seek a lesser sanction but he submitted some key points after the first adjournment and these were not heard if a decision had already been taken. This constitutes a departure from fair procedures
The complainant was offered representation in respect of the Disciplinary process and he attended the Disciplinary hearing with a Shop Steward. The Complainant sought the support of a Solicitor to address his appeal. On November 11, the complainant was assured of a Full Rehearing of the Disciplinary process. Representation was permitted at fellow employee or a Union representative which was contested by the complainants Solicitor. On 23 November, the Respondent outlined that
“Your client has been afforded ample time to source representation in accordance with company policy and procedure “…….” The company does not allow legal representation for internal disciplinary appeal procedures “
In the face of the complainants anticipated nonattendance, a written submission was requested, but not provided. The Appeal did not disturb the decision to dismiss the complainant.
I found several inconsistencies in the Staff Handbook in relation to representation.
1 Colleagues have the right to be accompanied by a fellow colleague or mutually acceptable representative at all stages of the Disciplinary procedure.
2 You are entitled to be accompanied by a colleague of your choice (within reason) or an appropriate trade union representative at the disciplinary hearing, when you have made a reasonable request.
3 You will have the right to be accompanied by another colleague of the company or by a representative acceptable to both management and yourself. (Appeal Stage)
I could not establish that Legal Representation was expressly precluded in the handbook. The Right to be heard is a fundamental component of fair procedures. The Company raised an expectation that the complainant would be heard via a full re-hearing. This did not occur. A written submission had no probative value in an appeal of a dismissal. I find it difficult just how an appeal could be properly conducted without listening to the people at the centre of the story, either the complainant, his managers or witnesses.
I am fortified in my conclusion when I consider the remainder of the assurances relating to an Appeal
“You will be given a full opportunity to state your case, and to call and question any witnesses “Given the complex employment relationship in being in this case, I find that the lack of adherence to this floor plan was unreasonable.”
In Lyons V Longford Westmeath Education and Training Board  IEHC 272, Eagar J expounded the principle of cross examination. The Complainant was denied this” vital safeguard”.
The Respondent asked me to consider that the complainant was given three opportunities to put his version of events forward in the case and that the Respondents actions occurred within the band of reasonableness. After careful reflection, I cannot agree with this viewpoint. I found that there were shortfalls in the application of the Disciplinary procedure. I found that serious misconduct was not clearly defined for the complainant and the implications of a lack of adherence to the Uplift Policy were not made out.
I find that while the issue under consideration at the time of dismissal was very serious , the Respondent cannot rely on the exemption clause in Section 6(4) of the Act . I could not establish a substantial reason for dismissal.
However, these issues could have been addressed and remedied on appeal were the complainant afforded his requested representation. This did not happen. I have found that the commercial supremacy of the third-party company caused a certain reticence in the Respondent and the test in Cavan County Council was not met.
Based on the facts before me, I find that the Dismissal was substantively and procedurally unfair , however, I have also found that the complainant contributed 30% towards his own demise.
I have considered this claim for notice. I have found that the complainant was unfairly dismissed and he is entitled to recover payment in lieu of notice.
Wages are defined in the Payment of Wages Act 1991 as:
“wages”, in relation to an employee, means any sums payable to the employee by the employer about his employment, including—
(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and
(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:
I find that the Claim is well founded.
Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages Act, 1991 requires that I decide in accordance with the redress provisions of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have found that the Complainant was unfairly dismissed. I find that compensation is the most appropriate redress I can award based on the unique facts of the case. I award €27,000 in compensation for the Unfair Dismissal, which includes the complainant’s 30% contribution.
Section 6 of the Payment of Wages Act, 1991 requires that I decide in accordance with the redress provisions of that Act. I have found the claim to be well founded. I order the Respondent to pay the complainant 9 weeks’ pay amounting to € 6,033 as provided for in his contract of employment.
Dated: 27th April 2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Unfair Dismissal, Payment of Notice.