ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013280
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 10/07/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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.
The Complainant was employed as a Painter from 1st October 2015 to 9th February 2018. He was paid €830.00 per week. He has claimed that he was unfairly dismissed and has sought compensation. The issue of dismissal was in dispute
Summary of Complainant’s Case:
The Complainant stated that there were discrepancies with his pay since March 2016. He queried the amount of wages stated on the P60 and payslips. He asked his employer to sort it out. There were issues with health and safety. He asked for safety gear, masks and eye protection. There were incidents of bullying and harassment. He was demoted from the position of Foreman and Mr X replaced him. He was then given menial jobs. He was accused of spilling paint on carpets yet there was a total of five Painters on that job. X said that he would break him. X physically threatened him on 7th November 2017 and said “if you steal anything again I’ll smash your face, also there was an accusation of stealing a dust brush from a car. He reported the threat to An Garda in Store St. The Gardaí were to investigate but they couldn’t get to speak to X. He asked the employer Respondent to join him in the Garda station. When he asked X for a face mask he responded I’m not getting that. On 31st October 2017 he asked the Respondent to sort out his pay issues or he would have to report the matter to Revenue. He then reported the matter to Revenue. The Respondent said “you’d be a sorry man if you go to Revenue”. He reported the threat to An Gardaí in Blanchardstown. On 12th November 2017 he received a text from the Respondent asking him to take the next day off and referred to a report that he had received. He agreed to take the 12th off. Over the next few days texts were exchanged. On 14th November the Respondent texted “following on from our conversation, you refused to provide a statement of what happened on 6th whilst the matter is being investigated you will be dismissed with pay Regards…” The Respondent sent another text “this morning you refused to give statement into your actions of last Monday 6th I have a witness to this, you have also lied by text told lies of your involvement in entering my van after saying I had no spare key too, we have found this on CCTV my hr company will be in touch regarding this matter Regards…”. He has made severalcontacts to establishhis employment status, reasons for this situation, who his HR company is. He received no reply. His pay was stopped on 4th December 2017. He was not notified of this but realised it when no pay was lodged to his account. He has reached a conclusion that his employment has been terminated. He is seeking compensation. He has not worked since. He applied for jobs on line and on sites.
Summary of Respondent’s Case:
Around September 2017 the Complainant had been out sick allegedly caused by work conditions. An incident occurred on 6th November 2017 where X drove his van to work. He saw the Complainant open the van, lean in to it. He told the Complainant that he shouldn’t have had the key to it. He was asked to prepare a statement on the incident. A Duster valued at €60/€80 was missing from the van. He was then suspended with pay for the key and duster incident. A HR company was assisting the Respondent with this matter. On December 3rd 4th and 5th he was seen working for another company while he was on paid suspension. On that basis the Respondent stopped paying him. The Complainant made numerous complaints to the WRC X 2, the HSA, Revenue and Data Protection. On 2nd October the Complainant had texted that he was owed €6,000. The Respondent checked it out. There was a discrepancy between days worked and days paid. Their Accountant is currently dealing with the matter. If money is owed it will be paid. He was suspended with pay, not dismissed with pay. He was then stopped pay. They examined the CCTV footage of the incident relating to the van on 6th November. They formed the view that the Complainant had taken the duster from the company van. There was a photo of the van which showed the key in the van. It was not conclusive that it was left by X or the Complainant. The duster was last used about three weeks before 6th November. He removed an electrical cleaner from the van as it was open. He then opened his own vehicle on the passenger side They believe that he put it in his own vehicle. X denies that he ever threatened him or gave him menial jobs. They stated that he was never employed as a Foreman.
On 4thDecember Y (an employee of the Respondent) saw the Complainant’s jeep at 7.00am meeting a known contractor. The Complainant was in his work gear. The contractor got into the Complainant’s jeep and they went to a Pearse St site. On 5th December Y saw his jeep in the same place, he was in his work clothes and he was with the known contractor. On 6th December Y saw his jeep again and it headed to Irishtown with the known contractor in it. The Complainant denied that he was working for the known contractor. He had met with him on these days but he was not on a job. The Respondent formed the view that he was working while on paid suspension so they decided to stop paying him. They did not advise him of that decision. They accept that not paying him was in effect dismissing him. They stated that they were justified in by-passing normal procedures. They stated that he hadn’t mitigated his loss. He was renovating a house at that time. He had opened an account with a trade supplier. He has not shown that he tried to mitigate his loss.
Findings and Conclusions:
I find that the text referring to dismissal with pay was an error and should have read suspension.
I find that by stopping pay the Respondent had in fact ended the employment relationship.
Therefore, I find that there was a dismissal.
I note that this was a troubled employment relationship.
I note that the Complainant raised issues about his wages in October and the Respondent by the date of the hearing had not addressed it.
I note that the Respondent was very concerned about the reporting of matters to the WRC, Revenue, HSA, Gardaí and Data Protection.
I note the conflict of evidence concerning the alleged threats.
I note the reporting to An Gardaí but there appears to have been no follow up as yet.
I note the conflict of evidence regarding the Complainant’s position as Foreman.
I did not find evidence that the Complainant was a Foreman or that he was given menial tasks.
I note that the Complainant did not formally raise bullying and harassment grievances.
I note that the texts sent in November made accusations of lying without any investigations having taken place.
I find the CCTV footage does not categorically prove that the Complainant had a key to the van or that he removed the duster,
I found that it raised serious concerns about the Complainant’s activity that day that warranted proper investigation.
I note the conflict of evidence regarding the Complainant’s activity on 4th. 5th and 6th Decemnber.
The evidence of early meetings, driving to sites, wearing work gear and at 7.00am doesn’t suggest a casual rendezvous. On the balance of probability, I find that he was working with the known contractor.
I find that the Complainant’s activities warranted a detailed investigation, to be carried out by an independent person.
I find that the Respondent jumped to conclusions and stopped paying him and in effect dismissed him.
I find that the Complainant had a case to answer.
The Respondent in the first instance should have carried out a detailed investigation. The allegations should have been put in writing and all evidence such as CCTV footage to be relied upon should have been given to the Complainant.
I find that the Complainant should have had the right to defend himself, the right to representation and the right to face his accusers.
I find that if at that stage the Respondent believed that the Complainant had a case to answer then they should have escalated the matter to a disciplinary hearing carried out by an independent person.
The Complainant should have been advised in writing what he was accused of. He should have been advised of the potential outcome of the investigation. He should have been given the right to defend himself, the right to representation and the right to face his accusers. He should also have been given the right to appeal the outcome of the disciplinary investigation.
I find that the whole process lacked fair procedure.
I find that the Complainant was denied natural justice.
I find that it was questionable whether there were substantive grounds to terminate the employment.
I find that the process was hopelessly flawed from a procedural point of view.
I find that the dismissal was both substantively and procedurally unfair.
I find that compensation is the most appropriate redress.
Mitigation of loss
I note in the Employment Appeals Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.
I find that the Complainant has not presented evidence that he has actively tried to mitigate his loss.
I find that he has confirmed that he was renovating a house.
I find it difficult to accept that he couldn’t get a painting job with a boom in construction and an alleged shortage of skilled people.
Therefore, I find that he has failed to properly mitigate his loss. This must be reflected in the quantum of the award.
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.
I have decided that the dismissal was unfair for the above stated reasons.
I have decided that the Complainant has failed to properly mitigate his loss.
I have decided that the Respondent should pay the Complainant compensation €7,000 within six weeks of the date below.
Dated: 21st September 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly