ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022143
Parties:
| Complainant | Respondent |
Anonymised Parties | A Social Worker | A Social Care Provider |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00028969-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint / dispute to me by the Director General, I inquired into the complaint / dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint / dispute.
Background:
The Complainant commenced employment with the Respondent, as a Social Care Worker, in January 2018. He worked a mixture of day and night shifts; his average monthly pay was €3,500.00. He was suspended from work following an incident that took place in April 2018. He was dismissed on 29th May 2019. The Respondent did not attend the hearing. A complaint for unfair dismissal was lodged with the WRC on 7th June 2019. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing. |
Summary of Complainant’s Case:
The Complainant stated that he started working for the Respondent in January 2018 and at first all was well. However, in July 2018 there were problems with his wages; delayed payments, underpayments. These problems continued until his dismissal. The Complainant contacted the Respondent several times about the problems with his wages, but matters were never cleared up properly. In March 2019, the Complainant did not receive his wages and emailed the Respondent. He did not get a reply. On 3rd April 2019, the Complainant went to the head office to speak with the Respondent about the problems. The Respondent was not there. The Complainant spoke with the office staff, outlining what had gone wrong and his frustration at the situation. He did not, as was to be alleged later, make any threats about the Respondent when he was talking to the office staff. On 19th April 2019, the Complainant received a phone call from his manager who told him that he was not to come on shift until he had spoken with the Respondent. On 23rd April 2019, the Complainant spoke with the Respondent who told him that the reason he had been suspended was because he had made threatening remarks. The Respondent relayed that one of the head office staff had told the Respondent that the Complainant had said he was “going to put [the Respondent’s] head through a wall”. The Complainant denied the allegation. The Respondent told the Complainant that he was to remain suspended to allow him, the Respondent, carry out a full investigation. The Respondent said he would get back to the Complainant in a week. A meeting was arranged for 5th May 2019; however, it did not go ahead as the Respondent was not available. A meeting between the Complainant and the Respondent did take place on 29th May. The Complainant stated that at this meeting the Respondent said that he believed the head office staff member’s version of events relating to the 3rd of April 2019. He told the complainant that he had no option other than to dismiss him. The Complainant stated that he did not get a chance to tell his version of events. The Complainant stated that he did not receive any written notification of the meeting of 29th May 2019. He did not get copies of any witness statements in advance of the meeting of 29th May 2019. He confirmed that his workplace was non-unionised. Following his dismissal there was no communication from the Respondent. He was never paid his outstanding monies The Complainant commenced employment with a new employer in mid-July 2019, however, it is only part-time, and he earns around €1,340.00 per month. |
Findings and Conclusions:
On the uncontested evidence of the Complainant I find as follows. 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. 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.” In this case the Respondent has not put forward any grounds justifying the dismissal. Regarding the fairness of the procedures, I find there were several failings:
Accordingly, I conclude this was an unfair dismissal. |
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.
The complaint is well founded. I order the Respondent to pay the Complainant €17,340 in compensation. |
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Natural Justice, Fair Procedures, |