ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018432
A Network Service Provider
Management Support Services (Ireland) Ltd
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: 24/04/2019
Workplace Relations Commission Adjudication Officer: Shay Henry
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following 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 dismissed for gross misconduct following allegations of fraud.
Summary of Complainant’s Case:
The Complainant worked as a linesman with the respondent from May 2015 until 17th October 2018 when he was dismissed on the grounds of gross misconduct. The reasons given for his dismissal were; an allegation of falsely claiming hours worked on 10th Sept 2018 and; an allegation of falsely claiming overnight allowances between 10th Sept 2018 and 14th Sept 2018. The complainant argued that it was common practice for linesmen not to do the specific hours in the contract but rather to achieve a minimum number of poles on a weekly basis. He also had not been feeling way on the 10th September and intended meeting the weekly quota for poles in any event. Secondly, the money payable for overnight allowances was inadequate. The complainant felt that the onus was on the respondent to investigated fully these issues in the context of the investigation and not to expect him to name other employees. The complainant disputed that the conduct complained of was truly gross misconduct and pointed out that even smoking was listed as gross misconduct in the Handbook.
Summary of Respondent’s Case:
The complainant was employed as a Linesman from May 2015 a role which involved construction, maintenance of electricity and telecom poles. On his commencement he received and signed for a copy of the company handbook. In September 2018 it was noted that there was an anomaly in the paperwork submitted by the complainant and he was invited to attend an investigation into two issues;
An allegation of falsely claiming hours worked on 10th Sept 2018 which constitutes a breach of Company Policies and Procedures and is defined as gross misconduct and;
an allegation of falsely claiming overnight allowances between 10th Sept 2018 and 14th Sept 2018 which is again defined as gross misconduct.
During the investigation the complainant freely admitted to the allegations. He stated that it was common practice among his fellow workers to sign for hours not worked and for overnights. He did not provide any details of any other employees in support of this claim. Following the investigation, the complainant was requested to attend a disciplinary hearing which took place on 8th Oct 2018. The complainant again admitted to the allegations. At a meeting held on 17th Oct 2018 to discuss the outcome of the disciplinary process the complainant was advised that he was being dismissed on grounds of gross misconduct.
The complainant appealed the decision and a further hearing was held on 25th Oct 2018. The grounds of the appeal related to 1) the proportionality of the sanction and 2) that it was custom and practice in the organisation to finish work once targets had been met. The outcome of the appeal upheld the original decision to dismiss.
Section 24.6 of the Handbook provides that in the extreme circumstances of gross misconduct the employee’s employment will be terminated without previous warning.
Findings and Conclusions:
S6(4)(a) of the Act states without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee.
In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.
I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal. Having examined the procedures used in this case I conclude that they were fair and the complainant was placed at no disadvantage in their application.
As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”
The complainant has claimed that it was customary among his fellow employees to sign for attendance in the same manner as he had done. Any custom and practice could be an implied term in a contract. However, an express term in the contract to the contrary would supersede any implied term and in this instance the contract clearly states that the working week is 39 hours i.e. not based on piece work relating to number of poles. Secondly, it is clear from the evidence given that the respondent would never have agreed to an implied term involving signing for days not in attendance at all. However, based on the evidence presented during the hearing, I do not believe the complainant was aware of the seriousness of the conduct and potential repercussions. In relation to the issue of expenses any such expenses would have had to be approved by someone more senior in the company as they were only payable where the claimant was required to stay overnight. A cursory examination of his claim would reveal that he had not been required by a relevant manager/supervisor to so do. I believe the complainant viewed the money payable in expenses as somewhat paltry and was chancing his arm applying for the expenses rather than seeking to defraud. I therefore conclude that the decision to dismiss was a disproportionate response.
The complainant has indicated a preference for compensation. An award of compensation for unfair dismissal is to make reparation for loss actually incurred which includes future loss in consequence of the dismissal. There is no provision for including an amount intended as punitive or exemplary compensation. Compensation is defined in Section 7(1)( c) of the Act as ;
(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, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
The complainant did not apply for work from the date of his dismissal until 9th of January and he commenced full time on 11th March 2019 in a job which payed €2 per hour less. The compensation payable to him is limited by these factors. In my view his conduct contributed very significantly to the dismissal and therefore the amount of compensation also reflects this.
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 find the complaint in relation breaches of the Unfair Dismissals Acts1977 - 2015 is well founded and I order the respondent to pay the complainant €2000 in compensation.
Dated: 14th August 2019
Workplace Relations Commission Adjudication Officer: Shay Henry
Unfair dismissal. Disproportionate response.