ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006903
Parties:
| Complainant | Respondent |
Anonymised Parties | Warehouse Operative | Sales and Distribution |
Representatives | John Hennessy Hennessy & Perrozzi Solicitors | Conor O'Gorman IBEC |
Complaint:
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-00009385-001 | 30/01/2017 |
Date of Adjudication Hearing: 23/01/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with 8 of the Unfair Dismissals Acts, 1977 – 2015 andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed by the Respondent Company as a Warehouse Operative, from 31st March 2011 until the employment was terminated without notice on 26th August 2016. The Complainant worked 39 hours a week and he was paid €510.00 per week. The Complainant was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Commission on 30th January 2017 alleging he had been unfairly dismissed. The dismissal was not in dispute. |
Summary of Respondent’s Case:
The Complainant was employed as a Warehouse Operative from 31st March 2011. The Complainant left his place of work on 20th May 2016 without permission and he subsequently reported an absence due to alleged stress. The Complainant was absent for 26 working days and returned to work on 27th June 2016. During the Complainant’s absence at the end of June 2016 the named Warehouse Team Manager, while out on a personal errand noticed an ex-employee of the Respondent, named, at a Garage and they engaged in conversation. However the day the Complainant returned to work on 27th June 2016, he approached the named Warehouse Manager on the Floor and proceeded to ask him if the Respondent had sent him, the Warehouse Team Manager to the garage to see if he, the Complainant, was working there. The Complainant then went on to tell the Manager that he had called to his garage “the other day” and had spoken to the named employee in the garage. The Manager then asked the Complainant if he owned the garage and the Complainant stated that he part owned it. The Complainant then asked the Manager if the Respondent had sent him out to the garage and that the Respondent was trying to catch him working there as he was out on sick leave. The Manager then sent an email to the HR Department detailing the encounter. The HR Manager had become aware that the Complainant had an interest in the garage and suspected that the Complainant was working there while being certified unfit for work. She travelled to the garage on 21st June 2016 and she witnessed the Complainant working and she took photos on her mobile phone – copies provided to the Hearing. As the Complainant had confirmed to the Warehouse Manager that he part owned the garage and the HR Manager had photos taken on 21st June 2016 while the Complainant was on certified sick leave he was invited to attend an investigation meeting by letter dated 28th June 2016 with a right to be accompanied and he was informed of the issue to be discussed. This was scheduled for 5th July 2016. The Respondent was represented by a named Manager. At the Investigation Meeting the Complainant confirmed that it was him in the photos taken but that he was not working he was checking tyres for his own car – notes of the meeting provided. The HR Manager was interviewed as part of the investigation and she confirmed she had taken the photos and that the Complainant had handed out business cards on site and that the Respondent was aware of other employees working in the garage and that one employee had recently been dismissed. The photos were taken between 11.53 and 12.15 which would indicate that she spent some 22 minutes observing the garage on 21st June 2016, being sufficient time for her to observe that he was working in the garage on that date. The Complainant was also being paid sick pay by the Company and claiming from the Department of Social Protection while certified unfit for work while at the same time generating income while working in his garage. The Complainant was provided with a copy of the Investigation Report and the matter was referred for a Disciplinary Hearing. However, prior to the Report being issued on 12th August 2016 while at a meeting with the Complainant on 22nd July 2016 to explain the delay in issuing the report, the Complainant asked if the Respondent would pay him €10,000 “to go quietly”. He went on to further say that if the Respondent would pay this then he would share some of it with the HR person who was explaining the delay in issuing the report. The named HR person emailed her Supervisor to note the incident. The Complainant was invited to attend a Disciplinary Hearing on 4th August 2016 and the invitation outlined the allegation against him – the right of representation – the potential outcome and he was provided with the investigation report and supporting documentation. This was conducted by another named Operations Manager and the Complainant submitted into evidence a statement from another former employee and his Bank Statement, a receipt from his GP dated 21st June 2016, a still photo taken from the fuel station adjacent to the garage and mobile phone photos showing his garage. The outcome was to dismiss the Complainant for gross misconduct. The Respondent also referenced the fact that the Complainant had not disclosed his second employment to the Respondent when he joined the Company although this was not a deciding factor in the decision to dismiss. The Complainant was informed of the outcome by letter dated 12th August 2016 with a right of appeal. The Complainant appealed the decision by letter dated 29th August 2016. The appeal hearing was conducted by the General Manager on 12th September 2016. During the appeal hearing the Complainant did confirm that he was part owner of the garage but denied working in it while absent from work and that the photos taken by the HR Manager showed him helping out lifting tyres and that he does this for exercise and relaxation purposes. This was different to what the Complainant had told at the investigation meeting where he informed the hearing that he had been checking tyres for his own car on the day in question. He also stated that he received only €48.00 a week from the garage. The dismissal was upheld. The Complainant’s Solicitor wrote to the Respondent on 8th December 2016 alleging 11 reasons as to why the dismissal was unfair and inviting the Respondent to “reconsider the dismissal and forward comprehensive proposals” and that failing this they would bring a claim to the WRC The Respondent replied on 12th December 2016 stating they were satisfied with the integrity of the process The Respondent argued that at all times the Complainant was afforded fair procedures and they referenced a number of decisions in support of their arguments. |
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on 31st March 2011. In 2014 the Complainant obtained a business interest in a garage, with a named friend. He did not work there but continued to work for the Respondent. The Respondent was aware of this interest and did not raise any objection. The Complainant was certified as unfit for work by his GP from 20th May 2016 until 27th June 2016 and medical certificates were submitted together with a letter confirming his fitness to return to work on 27th June 2016. The Complainant denies that he had any conversation with another named employee when he returned to work on 27th June 2016 and likewise the Respondent was aware at all times of the Complainant’s interest in the garage and he denied that a named employee of the Respondent witnessed him working at the garage on 21st June 2016 as he was not working at the garage on that date. The Complainant raised doubt concerning the authenticity of the photographs allegedly taken on 21st June 2016 and on which the Respondent relied in dismissing the Complainant. The Complainant argued that the investigation and disciplinary procedures were unfair and the findings were made in breach of fair procedures and natural justice. It was submitted that the investigation was conducted in breach of fair procedures and the Complainant was not afforded an opportunity to properly respond or challenge the case being made against him and his responses were not given due consideration or investigation and he was not provided with a translator (He confirmed at the Hearing that he did not request a translator be present). Likewise the Disciplinary procedure was conducted in breach of fair procedures as the Complainant’s response was not given due consideration or investigation. He raised many issues in relation to the material used to justify the decision to dismiss him. Information/evidence provided by him was rejected out of hand and he gave the example of the statement from a named employee in the garage in relation to a visit by a named employee of the Respondent. Likewise the Complainant was not afforded legal representation at either the investigation or disciplinary stages or to challenge the evidence through cross examination by a Solicitor or counsel. The Complainant was entitled to fair procedures as defined in the recent decision of the High Court in Lyons v Longford Westmeath Education and Training Board. The Complainant further submitted that the appeal was prejudged and biased and they argued that in the alternative the Complainant’s actions did not constitute gross misconduct and the sanction of dismissal was disproportionate in the circumstances. The Complainant stated that he had commenced employment on 8th January 2018, earning €26,400.00 gross and he works 40 hours a week. He was requested to provide evidence of this post the Hearing but did not do so. The Complainant stated that he had been in receipt of Jobseekers Benefit from the end of August 2016 until 8th January 2018. He was requested to provide a statement from the Department of Social Protection post the Hearing in relation to the period covered by his claim from August 2016 to January 2018 but he did not do so. The statement provided to the Hearing shows an amalgam of both Jobseekers and Illness Benefit. These were to be separated in the context of being available to work and his complaint. The Complainant did provide some evidence of mitigation of loss dated 15/10/2016 and four emails all dated 12th August 2017 between the times of 3.42 and 16.26 on the same day. The Complainant provided photographs taken he said on 29th August 20127 of his garage in relation to the petrol garage adjacent to his garage |
Findings and Conclusions:
On the basis of the evidence, submissions by both Parties and cross examination where requested I find as follows- The Complainant was provided with a written statement of his Terms and Conditions of Employment including the Grievance and Disciplinary Procedures of the Company. The Complainant was absent on sick leave from 20th May 2016 when he left the employment without permission. He was absent for 26 working days and he returned to work on 27th June 2016. While the Complainant was absent on certified sick leave the Warehouse Team Manager observed a former employee of the Respondent working in a garage and they spoke. This Warehouse Team Manager was unaware that the Complainant had a business interest in this garage at this time until he was approached by the Complainant on his return from sick leave on 27th June 2016 who sought to query if he had been sent to the garage by the Respondent. The Warehouse Team Manager brought this conversation to the attention of the HR Department. The HR Manager had become aware that the Complainant had a business interest in this garage and she went to the garage on 21st June 2016, where she observed the Complainant working and she took 5 photos of the Complainant between 11.53 and 12.15. The Respondent wrote to the Complainant by letter dated 28th June 2016 inviting him to an investigation meeting with enclosed documentation and informing him he was entitled to be represented by a trade union representative or a colleague of his choice. The investigation was to be conducted by a named different Warehouse Team Manager than the Manager who had spoken to a former employee in the garage. This investigation meeting took place on 5th July 2016. Minutes of this meeting were provided to the Hearing signed by all the 4 participants present at this meeting. These show that the Complainant stated that on 21st June 2016 he was checking out tyres for himself at the garage. I note that on this date the Complainant did attend his GP and he did provide a medical certificate dated 21st June 2016 to his Employer. However there was no evidence presented as what time the Complainant attended his GP. The Complainant did confirm that he had a business interest in the garage and he also confirmed that he had handed out his business cards within the Respondent’s workplace. The Complainant also confirmed that he was paid sick pay from the Respondent and that he had claimed illness benefit from the Department of Social Protection at the same time. Both Parties confirmed at the Hearing that prior to the Investigation Report being finalised a meeting took place on 22nd July 2016 between a named HR person and the Complainant to explain the delay in finalising this report. During this meeting both sides confirmed that the issue of a payment was raised and the Complainant sought €10,000. The Complainant alleged it was the Respondent who raised this issue first with the Respondent stating it was the Complainant. The HR person did write an email to the HR Manager concerning the issue. The Investigation Report recommended that the matter be referred for Disciplinary process. The Complainant was invited to attend a Disciplinary Hearing by letter dated 28th July 2016. The Hearing took place on 4th August 2016. The Complainant was provided with a copy of the Investigation Report and he was afforded a right of representation. He was informed that the issue may warrant a disciplinary sanction up to and including dismissal. The Complainant submitted into evidence documents which he asserted supported his position that he was not working on 21st June 2016. The Disciplinary was conducted by a named Shift Operations Manager. The Manager addressed all this evidence in his report in relation to – a statement submitted from a former employee now working in the garage – his Bank Statements which he alleged showed there were no payments into his account from the garage from May to 29th June 2016 – leaving his workplace early on 20th May 2016 without permission – Receipt of payment to his GP on 21st June 2016 – a photograph from a nearby named Fuel Station near the Complainant’s business garage – photos taken 58 metres from his garage. The outcome was to find the Complainant guilty of gross misconduct. He was afforded a right of appeal which he did on 29th August 2016. The Appeal Hearing took place on 12th September 2016 conducted by the General Manager. During this appeal Hearing the Complainant again confirmed he was a part-owner in the garage and he stated that the photos taken on 21st June 2016 show him helping out lifting tyres and that he does this for exercise and relaxation purposes. I note that this differs from his response at the investigation stage where he had stated he was checking tyres for his own car. The Complainant also confirmed that he receives €48.00 per week from the garage. The decision was to uphold the dismissal. The issue to be addressed now is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss the Complainant was one that a reasonable employer might make. There are a number of High Court Decisions to be considered in relation to the application of fair procedures. In Lyons v Longford Westmeath Education and Training Board IEHC 272/2017 the Judge held “where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures………..It is the actual investigation that requires the right to cross examination and representation, that takes place prior to initiation of the disciplinary procedure under Circular 71/2014”. It is clear that in the particular circumstances of that case findings were made against the Complainant prior to the Disciplinary Hearing which would not be considered during the Disciplinary process. This issue was also addressed by the High Court in EG v The Society of Actuaries in Ireland IEHC 392/2017 in which the Judge held “The Court is satisfied that the Investigating Committee was not obliged to conduct an oral hearing or to give the applicant an opportunity to cross-examine others in determining whether a prima facie case existed. The Court was satisfied that the decision to proceed on the basis of the statements and documents furnished was reasonable and fair in the circumstances”. In that case it is clear that the investigation decided there was a prima facie case of misconduct which was then put before the Disciplinary Tribunal. Similarly in the Decision of the High Court in NM v Limerick and Clare Education and Training Board IEHC308/2015 THE Judge held that “The decision to be taken by the investigators in this case could not be regarded as a final or binding finding of fact against the applicant. The procedure under the Circular requires an extensive hearing before determination could be made by the Chief Executive that a particular sanction should be applied”. In the current complaint, the Respondent has a robust Disciplinary Policy incorporating Investigation Procedures and Disciplinary Procedures followed by an Appeals Procedure. The Complainant was invited to attend an Investigation Meeting and the issues to be addressed were clearly set out in writing – the Complainant was afforded a right of representation and he was accompanied by his SIPTU Representative. It is clear from the letter dated 28th June 2016 inviting the Complainant to an Investigation Meeting on 5th July 2016 he was informed that “depending on the outcome of this investigation this issue may be put forward as a disciplinary matter. However no decision has been taken, nor will be taken until this matter is fully investigated”. The outcome of the Investigation was communicated to the Complainant by letter dated 26th July 2016. I further note that the Department of Social Protection by letter dated 13th July 2016 had written to the Respondent in relation to taxation of illness benefit and occupational injury benefit that the Complainant had been in receipt of benefit up to 25th June 2016. Likewise I note that the Complainant confirmed at the Investigation that he was part owner of the garage and that he had been present in the garage on 21st June 2016 to examine tyres for his own car. Therefore I find that the Investigation Report established a prima facie case based on the Complainant’s own evidence and in a letter from the Department of Social Protection. The Investigation Report clearly states “I recommend that this matter be put forward for disciplinary”. I find that the Investigation was conducted with due regard to fair procedures. The Disciplinary Process was conducted in line with the agreed procedures of the Respondent Company. The Complainant was provided with a copy of the Investigation Report prior to the Hearing on 4th August 2016. He was afforded a right of representation and was accompanied by his SIPTU Representative. The Complainant submitted 6 grounds of defence and the Disciplinary Outcome Report clearly shows that all six grounds were carefully considered by the Disciplinary Manager and his response to each of the six defences is clearly stated. I note that at the Disciplinary Hearing the Complainant defended his presence in the garage on 21st June 2016 on the grounds he did it for exercise and relaxation. This differs from the explanation advanced at the investigation that he was at the garage on 21st June 2016 looking for tyres for his own car. The decision to dismiss was issued to the Complainant by letter dated 12th August 2016 with a right of appeal. I find that the Disciplinary Process made findings that the Complainant had been working in his garage, which he part owned, on 21st June 2016, that this constituted gross misconduct and a decision to dismiss was made. The Complainant was afforded a right of appeal which was heard on 5th September 2016 and the outcome was to uphold the decision to dismiss. I find that the Complainant was afforded fair procedures in relation to the Disciplinary and Appeals Process in line with S.I. 146/2000 as set out at Section 6(7)(a) and (b) of the Act where it states – “…in determining if a dismissal is an unfair dismissal, regard may be had if the Adjudication Officer or the Labour Court, as the case may be, considers it appropriate to do so – (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, 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 referred to in paragraph (d) …of Section 7(2) of this Act”. Section 7(2)(d) provides as follows – “ 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 by the Minister. S.I. 146/2000 was approved by the Minister Mary Harney on 26th May 2000 Section 14 (1) of the Act provides “An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee”. The Complainant confirmed he had been provided with the Disciplinary Procedures of the Company. Section 7(2)(c) of the Act in relation to redress in the context of an unfair dismissal provides as follows – “the measures (if any) adopted by the employee, or as the case may be, by his failure to adopt measures, to mitigate the loss”. The evidence presented by the Complainant at the Hearing shows 6 applications as follows – four on the 12th August 2016 between 15.42 and 16.26 – one on 15th September 2016 and another on 15th October 2016. The Complainant stated he commenced full-time employment on 8th January 2018 but no evidence was provided to support this although requested at the Hearing |
Decision:
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.
In accordance with Section 8 (1) (c) and on the basis of the evidence and my Findings above, I declare the complaint of unfair dismissal is not well founded. The Respondent acted in accordance with its own policies and conducted the investigation, disciplinary and appeals process with due regard to fair procedures and natural justice. |
Dated: 3rd May 2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Unfair dismissal – fair procedures -High Court cases. |