ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00004641
A Warehousing and Distribution Company
Richard Grogan & Associates
Management Support Services (Ireland) Ltd
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
15 August 2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
15 August 2016
Date of Adjudication Hearing: 20 July 2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 15th August 2016, the complainant referred complaints to the Workplace Relations Commission pursuant to the Unfair Dismissals Act and the Organisation of Working Time Act. The complaints were scheduled for adjudication on the 20th July 2017. The complainant attended the adjudication and was represented by Richard Grogan Solicitors. The respondent company was represented by John Barry, Management Support Services. Four witnesses attended for the respondent.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015 and section 41 of the Workplace Relations Act, 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 asserts that he was unfairly dismissed and the respondent denies the claim.
Summary of Respondent’s Case:
The respondent outlined that it was a warehousing and distribution company that provided haulage service to clients. This work takes place on organised runs and it is necessary to adapt the work to respond to clients’ requests. The respondent outlines that there had been two external investigations following allegations of bullying made by the complainant against a director and other employees. The first investigation concluded that there had been four instances of inappropriate behaviour by the company director over six years. The investigator recommended mediation to facilitate the complainant’s return from a period of sick leave. The complainant returned to work on the 18th February 2016.
The respondent outlines that issues arose regarding the complainant completing deliveries. It describes that the complainant rigidly sought to finish work by 5pm, even though the mediation agreement allowed for flexibility. The respondent raises the complainant’s “disparaging” comments regarding the company director. It states that the complainant was aggressive to other staff members. The complainant commenced attending work with a personal camera recording his interactions with members of staff. The respondent raised data protection issues of this and in conversation with his manager, the complainant aggressively told the line manager to “p*ss off” and that the line manager was a bully. This was followed by a physical interaction where the complainant grabbed the line manager’s arm. The line manager complained of this incident and this was dealt with under the disciplinary procedure. A company director carried out the disciplinary investigation, leading to the letter explaining the complainant’s dismissal of the 18th May 2016.
The respondent submits that while the period between February and April 2016 was a short one, it was necessary to look at the historical context of the complainant’s interactions with the respondent and the company director. It raises the complainant’s behaviour in this time, where he accused “nearly everyone” of bullying him. He did not complete deliveries. He was abusive to colleagues and managers and attended work with a personal recording device. The respondent asserts that it was entitled to terminate the complainant’s employment in the following terms “on considering all the above facts management took the decision to terminate your contract of employment based on the seriousness of the totality of events and that your unreasonable behaviour has completely undermined the employer/employee relationship making a continuation of your employment untenable.”
The respondent offered the complainant an external appeal, which he availed of. This concluded on the 7th November 2016. While it determined that the procedure leading to his dismissal was deficient on a number of grounds, it held that the complainant was wholly responsible for the incidents that led to his dismissal. It upheld the decision to dismiss as fair.
The respondent submitted that section 17 of the Organisation of Working Time Act allows for flexibility. In this case, the hours of work were set out in the mediation agreement. There had been six occasions in the period between the 18th February and the 25th March 2016 that the complainant had worked beyond 5.30pm. It accepted that the disciplinary investigation was part of a disciplinary process, so fair procedures applied. The complainant was offered the right to representation and his solicitor was on record at the time. The complainant had chosen not to bring legal representation. The complainant could have sought to cross-examine witnesses. The respondent submitted that this had been a fair disciplinary process relating to significant issues, which could not be denied. In the alternative, the respondent submitted that the complainant had contributed to his dismissal because of his behaviour. The email of the 15th April 2016 had informed the complainant of his suspension and of the danger of dismissal.
Summary of Complainant’s Case:
In the complaint form, the complainant outlines that he was unfairly dismissed and penalised by the respondent for failing to cooperate with a breach of the Organisation of Working Time Act. He was dismissed following his complaint about working time.
The complainant outlined that the respondent must have direct evidence of the claims made against him and it was relying on hearsay. He identified one person as required to attend the adjudication; this was the former employee who emailed an account of her conversation with the complainant. He challenged documents as hearsay.
The complainant relied on the authority of Lyons v Longford Westmeath Education and Training Board  IEHC 272 to submit that the process in this case was flawed. He did not have the opportunity to cross-examine witnesses and could not have brought a solicitor to attend the disciplinary hearing. In this case, witness statements were not presented to the complainant as part of the disciplinary investigation. The complainant should have had these statements before him in advance of the disciplinary hearing and these witnesses should have been present to be cross-examined. The complainant further relied In re Haughey  IR 217 in respect of the right to cross-examine.
In reply to the respondent, the complainant said that he had not been notified of the statements collected by the respondent. He did not have the right to cross-examine the witnesses and was not permitted legal representation. The Lyons case is applicable as the complainant was in danger of being dismissed. The complainant outlined that he was suspended and brought to a disciplinary hearing without proper notification. He was not formally notified what the disciplinary meeting was going to be about.
In respect of mitigation, the complainant said that he now worked for a haulage firm on a zero-hour contract. He worked between six and eight hours per day. He commenced the new role five weeks after his dismissal. He referred to his P60 which showed earnings of €19,000. In 2017, the complainant had earned €11,526.55 up to the 14th July 2017. By letter of the 1st August 2017, the complainant detailed his ongoing losses having taken up new employment in 2016. The complainant earned an average of €355.04 per week in this new employment.
The complainant indicated that he was withdrawing the penalisation claim made pursuant to the Organisation of Working Time Act.
Findings and Conclusions:
This is a complaint made pursuant to the Unfair Dismissals Act. The complainant’s employment commenced in June 2007. He worked as a driver for the respondent haulage firm, delivering goods to clients in the environs of the respondent facility. The complainant’s employment came to an end in and around the 21st April 2016.
It is fair to say that there has been a lot of water under the bridge in the relationship between the complainant and respondent. Prior to his return to work in February 2016, the complainant had been on unpaid sick leave for two years. An external investigator was retained to investigate allegations of bullying made by the complainant against one company director. The respondent indicates that the investigator held that there were four instances of inappropriate behaviour by the company director over six years and that they were at the lower end of the scale. The complainant then referred four complaints to the Workplace Relations Commission, dealt with at adjudication on the 28th May 2015. An award of €250 was made pursuant to the Terms of Employment (Information) Act. The Rights Commissioner recommended the parties engage in mediation, as proposed by the investigator, to facilitate the complainant’s return. This mediation led to an agreed document, with 12 heads of agreement. It is signed by the company director on the 15th February 2016. The complainant returned to work on the 18th February 2016, reporting to a new line manager.
Unfortunately, the return to work was not a success. The respondent placed the complainant on paid suspension on the 15th April 2016. The complainant attended a disciplinary investigation on the 21st April 2016. This was chaired by a company director. The complainant was accompanied by a witness. The chair used a script to raise eight issues of “poor work performance.” Each issue ends with a question to be posed by the chair to the complainant. Some indicate a degree of pre-judgment “can you tell me why you made these offensive remarks about [the company director] to a valued customer of [the respondent]?” and “why did you feel it was necessary to lay hands on your manager?”
On the 3rd May 2016, the complainant appealed the respondent’s decision to dismiss him. In the letter of the 18th May 2016, the respondent sets out the complainant’s responses to the issues raised by the chair at the meeting of the 21st April 2016. The complainant says that comments were a joke or said in private conversation. He denies laying his hands on the line manager. The chair does not directly address the conflicts in evidence. The letter’s conclusion, titled “summary”, states that the seriousness of the totality of events and the complainant’s unreasonable behaviour has made his continued employment untenable. It refers to comments made by the complainant as defamatory. It concludes that the complainant physically assaulted the line manager. It makes findings against the complainant regarding time-keeping, using a recording device in the workplace and being aggressive to staff.
The complainant appealed the decision to dismiss him and this was ultimately upheld on appeal on the 7th November 2016. The external party who heard the appeal referred in his conclusions to deficiencies in procedure, but that the complainant was wholly responsible for the incidents leading to his dismissal.
Having reviewed the evidence and documentation, I find that the respondent has not established that the dismissal was not unfair. I reach this finding for the various procedural deficiencies in the disciplinary investigation and in the application of a disciplinary sanction. The allegations were presented to the complainant at the disciplinary investigation meeting of the 21st April 2016. He did not have time to prepare evidence to contradict that provided by the respondent. He denied various allegations made against him. Prior to making a finding on the substance of each allegation, the respondent ought to have considered any conflict in evidence and obtained, if necessary, additional evidence. It ought to have concluded the disciplinary investigation with findings, prior to considering whether a disciplinary breach had occurred and the seriousness of any breach or breaches. The disciplinary conclusions also present findings that are graver than those discussed in the investigation: “offensive comments” are re-stated as “defamatory” and the allegation of “laying hands” is re-stated as “physical assault”.
In assessing redress, the relevant parts of section 7 provides as follows:
“(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following he adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances …
(c)(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, …
(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,
(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,
(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,
(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and
(f) the extent (if any) to which the conduct of the employee (whether by act or
omission) contributed to the dismissal.
The complainant incurred financial loss of €2,801.70 in the five weeks after his dismissal. He incurred ongoing losses of €152.34 per week after taking up new employment. It is just and equitable in the circumstances to award €3,400 for his ongoing losses having regained employment. The sum of these two amounts is €6,201.70.
The complainant indicated at the adjudication that he was withdrawing this claim and it is, therefore, deemed not well founded.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act
For the reasons set out above, the complaint of unfair dismissal is well founded and the respondent shall pay to the complainant redress of €6,201.70
The complainant indicated at the adjudication that he was withdrawing this complaint made pursuant to the Organisation of Working Time Act and I, therefore, deem it to be not well founded.
Dated: 22nd June, 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissals Act