ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00014328
A Former Employee
Krystian Boino Hoban Boino Solicitors
Seamus Tunney/J.A. Shaw Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearings: 17/12/2019 and 04/02/2020
Workplace Relations Commission Adjudication Officer: Anne McElduff
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Act [1977 – 2017]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 commenced employment with the Respondent on the 27th September, 2016. He was recruited from Poland. The Complainant was advised of his dismissal on the 23rd November, 2017 and ceased employment with the Respondent on the 15th December, 2017. The complaint was submitted to the WRC on the 25th April, 2018. The first adjudication hearing was held on the 17th December, 2019 after previous proposed dates were postponed on request. The adjudication hearing resumed and concluded on the 4th February, 2020. The adjudication hearings were facilitated by an interpreter.
Summary of Respondent’s Case:
In accordance with Section 6 (1) of the Unfair Dismissals Act [1977-2017], the Respondent outlined its position that it had not unfairly dismissed the Complainant. The Respondent stated that it had been in business since 1963 and that it dealt with Renault (and other) cars. The Respondent stated that it had encountered difficulties in recent years in trying to recruit suitably qualified and experienced motor technicians. The Respondent stated that it was seeking a qualified Cotech – ie a person who had obtained an accredited certification from Renault and who would therefore be fully familiar with Renault procedures in terms of assessing and rectifying mechanical failures. The Respondent stated that a Cotech would also be required to provide evidence and backup for the purpose of making any warranty claims to the manufacturer. The Respondent stated that it already had a Cotech employed who had been with the company for ten years and that this person was required to assist fellow mechanics and less qualified mechanics.
In early 2016, the Respondent contacted a recruitment agency in Poland. The Respondent stated that it stipulated to the recruitment agency that any candidate must be experienced and “must have good English” and an “excellent understanding of English” as this was necessary for completion of warranty and other essential documentation. Arising from it’s engagement with the recruitment agency, the Respondent received the Complainant’s CV which showed that he was well qualified for the position and had been involved in the training of Renault technicians. It was also indicated that the Complainant “had basic English”. The Respondent employed the Complainant with effect from the 27th September, 2016 and provided him with a written contract. The Respondent stated that it also secured accommodation in Ireland for the Complainant and paid his first months rent.
In relation to its dealings with the Complainant from the time of his employment, the GM of the Respondent outlined the following:
· That the Respondent’s Service Manager (SM) - also a fully qualified and experienced technician – became “aware and concerned very quickly upon his commencement of work of two problems, specifically his speed of work, (production) and his very poor English” which the GM stated “was along way below basic”;
· That early on the Service Manager brought her concerns to the Complainant’s attention and subsequently to the attention of the General Manager (GM) at approx. end of November, 2016;
· That the SM and GM had a review meeting with the Complainant on the 19th December, 2016. In this regard, the Respondent furnished a note of this meeting typed signed by the GM with the heading “Concerns:- Speed of work and English Language, particularly written” which stated:
“I discussed that it’s obvious that he has not been “on the tools” for a while but we need him to be able to work much quicker. Jobs that should only take particular times are taking him double this in many cases. We encouraged him to watch English speaking programs on TV. I mentioned that on his CV, he has said that he has basic English. We are very concerned about his written English which is a problem for workshop write-ups…..He fully understands this and promised to improve. He is going home to Poland….for Christmas. It was very difficult to discuss the above with [Complainant]. We promised to sit with him again maybe next March or April”;
· The Respondent stated that it considered the Complainant’s English language skills had worsened after his holiday periods to Poland – at Christmas 2016 and Summer 2017;
· The Respondent held a second review meeting with the Complainant on the 14th March, 2017 which resulted in a written warning being issued to the Complainant. The Respondent furnished a note of this meeting typed signed by the GM with the heading “Concerns:- Speed of work and English Language, particularly written” which stated:
“We discussed the speed of his work, referring to our review in December last. [SM] told him that his times have improved slightly but still way behind where it needs to be and what the other qualified mechanics are achieving. Jobs that should take particular times are still taking him double in many cases. We told him that we thought he was making a bigger effort with regard to his English language when he first arrived and that in our opinion it has slightly dis-improved…..We are very concerned about his written English which is a problem for workshop write-ups…..He fully understands this and promised to improve. It was very difficult to discuss the above with [Complainant] but am sure that he understands. I told him that I would be setting out our concerns in writing to him over the next few days in the form of a written Warning which I must do according to the contract that both parties signed”
· The Respondent furnished copy of its written warning to the Complainant of the 15th March 2017 which was by and large in the same terms as its own note of the meeting, was headed “Concerns:- Speed of work and English Language, particularly written” and type signed by the GM. The GM stated that he personally handed this letter to the Complainant. The letter of written warning stated as follows:
“Following our review with you yesterday, I am obliged to record what we discussed in relation to our concern….and advise you must take this as a Written Warning. We are concerned still with the speed of your work, referring to our review in December last…….in our opinion [your English language] has slightly dis-improved……We are very concerned about your written English which is a problem for workshop write-ups……You agreed that you fully understood this and promised to improve”
· The Respondent stated that despite many promises to make all efforts, the Complainant’s English deteriorated and there was no improvement in the speed of his work. The Respondent stated that it gave the Complainant every opportunity and time to improve but this never happened. The Respondent stated that it also gave the Complainant plenty of examples where because of his slow work they could only charge the customer half of the time taken to complete the job;
· On the 13th September, 2017 the Respondent issued the Complainant a final written warning. The GM clarified at the adjudication hearing that in issuing this letter he wasn’t seeking an explanation from the Complainant but stated that the letter was “…an effort to force him to improve to an acceptable standard on the basis that his qualification and experience would surely indicate an acceptable level of performance could be achieved with maximum effort and persistence….”. The final written warning was also headed “Concerns:- Speed of work and English Language, particularly written” was type signed by the GM. It stated as follows:
We have met with you on 2 occasions to specifically discuss our 2 concerns above. We are concerned still with the speed of your work…..We believe that your times have not improved since our detailed meeting in March and are not viable for us as an employer.
We believe that your standard of English which according to your CV over 1 year ago was basic, is nowhere close to where it needs to be and no change or improvement of any significance is noted since you first started working here on the 26th September 2016.
As a qualified Cotech, you fully understand the importance of recording work carried out in detail and you are failing to do this.
Unfortunately I must now warn you that unless your job performance improves to an acceptable standard which includes the record in English of the work that you carry out, that this must be taken as a final warning and that the next step will be dismissal”
· The GM of the Respondent stated that he was satisfied the Complainant knew that his level of English and rate of productivity were significant problems. The Respondent stated that the issuing of the final written warning did not result in any change or improvement. and that it convened a meeting with the Complainant on the 23rd November 2017 at which he was informed that his employment was ending and that he was being dismissed. The Respondent stated that the Complainant was accompanied at this meeting by another technician who is also Polish.
The SM gave evidence at the adjudication hearing in relation to the difficulties she encountered with the Complainant as regards communication, his lack of capacity to understand instructions and that he had to use google translate to complete documentation which took more time. The SM stated that the Complainant was very diligent in the jobs he undertook but took much longer and that customers were waiting on work to be completed. The SM stated that she interacted with the Complainant on a daily basis, that she suggested he watch English TV programmes and that the Complainant’s response to her was that he wanted to try but this had not happened. She stated that the documentation was needed for audits and warranties and that the Complainant’s work did not meet the standards required.
It is the Respondent’s position that it found the Complainant to be a nice man, that it was disappointed with how matters turned out, that it wished the situation was otherwise as the Respondent “wanted it to work”. In this regard the Respondent stated that it had gone to the expense of recruiting the Complainant as it needed qualified Cotech mechanics.The Respondent stated that from a business point of view it could not allow the situation to continue and that the standards expected were vital for its business. The Respondent stated that it was prepared to allow the Complainant stay and develop his English but that in the end due to the lack of improvement, it had no option but to dismiss him. The Respondent maintained that it followed the disciplinary procedure outlined in the Complainant’s contract of employment and the advice of its HR department, that the SM brought the concerns regarding the Complainant’s work to his attention on a number of occasions, that the Respondent made every effort to assist, that the Complainant was warned that improvements were necessary and that he did not appeal after he was informed of his dismissal. The Respondent submitted that the Complainant’s position was not “believable or plausible” and that its decision to dismiss was reasonable and proportionate in all the circumstances.
The Respondent stated that at the meeting of the 23rd November, 2017 the Complainant was advised that he was to finish from the following Saturday. However, the Complainant requested to stay on until the 15th December, 2017 as he had a flight booked to go back to Poland at that time. The Respondent stated that it agreed to this. Accordingly, it was the position of the Respondent that the Complainant received more than the statutory notice period as per the Minimum Notice and Terms of Employment Act [1973 – 2017].
Summary of Complainant’s Case:
The Complainant stated that he had forty years experience as a mechanic. He stated that he secured the post with the Respondent through an agency and that he left his job and family in Poland to come to Ireland. He stated that the Respondent picked him up at the airport. He stated that whilst the Respondent arranged his apartment, he paid back the first months rent.
The Complainant stated that he is a qualified Cotech mechanic specialising in Renault vehicles. In relation to his dealings with the Respondent, the Complainant stated:
· That he was a diligent employee always among the first to appear every morning and that in the course of his whole career he had never been dismissed;
· That each morning the work to be done was posted on a board in the garage and that he would google translate this to see what had to be done;
· That he never represented to the Respondent that he had an excellent command of written or spoken English and that his CV stated that he was learning English. The Complainant stated that his level of English was evident from his first day of employment and from the fact that his CV was written in Polish and he asked why he had been employed if the Respondent was seeking someone with good English. The Complainant also maintained that the required level of English did not feature in his contract of employment as any specific or fundamental term;
· That he successfully completed his probation in 2016;
· That he enjoyed good and positive relations with co-workers some of whom were Polish;
· That on a few occasions he was advised by the SM that he was not inputting the descriptions of the work into the computer system properly and that he then started using Google translate to do this work and could understand what to do. The SM also spoke with him about completing documentation properly and that when he did as advised the SM did not follow up further;
· That he never received any warning from the Respondent, nor was he the subject of any investigation or disciplinary meetings prior to the 23rd November, 2017. In this regard, the Complainant stated:-
o That he did not have a meeting with the GM and/or the SM on the 19th December, 2016;
o That he did not have a meeting with the GM and/or the SM on the 14th March, 2017;
o That he did not receive any written warning letter of the 15th March, 2017;
o That he did not receive any final written warning letter of the 13th September, 2017;
o That he was never approached by the GM about any work related difficulties;
o That in total he only ever had three discussions with the GM – in January 2017 which was in the context of a meeting of all mechanics, in October 2017 when he was seeking a day off to go to Poland and had his request translated on a piece of paper and on the 23rd November, 2017 when he was told he was being dismissed.
The Complainant outlined that on the 23rd November, 2017 at 4pm he was invited to a meeting by the GM. The Complainant stated that he asked a fellow employee – also from Poland - to accompany him and assist with the translation and that the Respondent agreed to this. The Complainant stated that he was advised at this meeting that the following Saturday was to be his last day of work. He stated that when he asked why, the GM stated that it was because his English was poor. The Complainant stated that he requested a further meeting for the following day – ie 24/11/2017 “in order to apprehend what was happening and to discuss how he could keep his position”. The Complainant stated that he thought all night about what he could do to keep his job and that on the following day, 24/11/2017, he asked the GM how he could stay in the job but was advised by the GM that “Nothing can be done”, that the decision was final “and that there is nothing more he can do at this stage”. The Complainant stated that in the course of his exchange with the GM on 24/11/2017, the GM added that he/the Complainant was “a really poor worker”. The Complainant asked the GM if he could stay on until the 15th December, 2017 and the GM agreed to this. The Complainant stated he had no further conversations with the GM after the 24th November, 2017.
The Complainant stated his performance and level of English were evident within the three month probationary period and that notwithstanding, he was retained as an employee after that.
The Complainant referred to his contract of employment which contained a disciplinary procedure which he stated was predicated on the objectives of securing an improvement in an employee’s standard of conduct or job performance and dealing with matters “in a fair and consistent manner”. The Complainant stated that the disciplinary procedure contained four stages ranging from verbal warning to dismissal and provided for “representation by a colleague at all stages of a disciplinary process” and a right of appeal. The Complainant stated that the Respondent had failed to provide any evidence of his alleged performance difficulties or any evidence of work not completed. In this regard the Complainant also stated that he was never shown a single complaint in relation to his repairs/services or evidence of a single mistake notwithstanding that he had fixed dozens of cars during his time with the Respondent. Further, no document had been produced to show he was working too slow.
It is the Complainant’s position that he was unfairly dismissed - that he was not the subject of any disciplinary action prior to the 23rd November, 2017, that no issues were raised with him about his suitability prior to that date and that he was not afforded fair procedures or the benefit of the disciplinary procedures set out in his contract of employment. In this regard, the Complainant maintained that the Respondent’s notes of alleged meetings with him and purported letters of warning issued to him were only created for the case before the WRC and that if – which he denied – such meetings did take place, he was not notified in advance and nor was he afforded representation or the right of appeal. The Complainant also stated that he did not receive any notification or written communication of the decision to dismiss him and that he only learned of the reason for his dismissal when he received the Respondent’s submission to the WRC.
The Complainant stated that he was planning on moving his wife and family to Ireland. He stated that if the meeting of the 19th December 2016 had actually taken place, he would not have returned to Ireland after Christmas that year as at that time, he still could have returned to his old job in Poland. The Complainant continued working for the Respondent until the 15th December, 2017 and returned to Poland on the 17th December. He was re-employed in Poland from the 15th January, 2018 as a general mechanic and not a Cotech and was earning less. The Complainant is seeking compensation for the unfair dismissal and provided details of his loss of income.
The Complainant accepted that he had received three weeks notice from the date of dismissal. The Complainant referred to his contract of employment which required him to give one months’ notice to the Respondent but that the corollary did not apply as the contract provided for the Respondent to comply with the minimum notice periods as per the Minimum Notice and Terms of Employment Act [1973 – 2017].
Questioning and Cross Examination:
The parties were afforded the opportunity to examine and cross examine each other’s evidence as part of the hearing and both the Respondent and the Complainant availed of this. The following matters were traversed:
· The level of the Complainant’s English and the conflicting positions in that regard including the GM’s statement that the Complainant’s work difficulties were known “very quickly”…..”discovered it the first day” but that they wanted to give the Complainant a chance. The Complainant stated that he was aware English was necessary for the job, that as a Cotech mechanic he understood the importance of written records, reports and documentation, that the system was the same in Poland, that he represented himself as having basic English and used google translate. The Complainant also stated that he had undertaken English lessons in Poland but none in Ireland as none were available at his location. In response to a question from the Respondent’s representative, the Complainant stated that he understood the risk for the Respondent if records, reports and documentation were not completed properly and also that google translate can make mistakes. He stated that he did not have any direct contact with customers. The Respondent maintained that the Complainant’s level of English was along way below basic;
· As regards work rate, the Complainant stated that he had no memory of any discussions with the SM about delays in completing his work;
· The disputed records of the discussions between the GM, the SM and the Complainant of the 19th December 2016 and the 14th March 2017. In this regard, the GM stated that there was no note of any internal discussion between him and the SM prior to the issue of the final written warning letter to the Complainant of the 13th September, 2017;
· The disputed written warning and final written warning letters to the Complainant of the 15th March and 13th September 2017. In this regard the GM stated that he did not meet with the Complainant in September, 2017 but that he asked the Complainant to come to his office where he handed him the letter of 13/9/2017. In answer to a question from the Complainant’s representative the GM stated that he wasn’t looking for an explanation on that occasion, that the letter was based on their experience of the Complainant’s work and issued in the hope it would lead to an improvement on the part of the Complainant;
· The application of the company’s disciplinary procedure – particularly as regards notification of meetings, investigation of complainants, the holding of disciplinary meetings and representation. The GM stated that the company would not normally give notice of meetings to an employee. The GM was queried as to how he could be sure the Complainant fully understood the import of the meetings when at the same time his notes recorded that “it was difficult to discuss….” matters with the Complainant – the GM referred to the meeting of the 23rd November, 2017 when the Respondent agreed to the Complainant’s request to be accompanied by his colleague – a fellow Polish employee who was able to translate. The GM stated that the company did not prevent the Complainant from availing of representation;
· Consideration of alternatives to dismissal – the Respondent stated this was not considered;
· Letter of dismissal and appeal - it was put to the Respondent that the company’s disciplinary procedure provides that an appeal must be submitted in writing “within five working days of the employee receiving notification of the decision”, that the Complainant had not received any such notification and further had been advised that nothing could be done. In response, the GM of the Respondent stated that the Complainant had asked if there was anything he could do to keep his job and that he had answered “No” as the decision had been made. The GM of the Respondent also stated that he did not recall a written notification of the decision to terminate the Complainant’s employment and that he communicated the decision verbally to the Complainant. The Respondent also stated that the Complainant should have appealed before submitting his complaint to the WRC and that it was open to him to do so as per his contract;
· Inter partes correspondence of the 10th April and 23rd April, 2018 which the parties agreed to open at the adjudication hearing although marked “Without Prejudice”. The letter of the 10th April 2018 which was sent from the Complainant’s Solicitors to the Respondent sought a written statement of the reasons for the dismissal. The Respondent’s replying email of the 23rd April, 2018 referred – inter alia - to representations made by the Complainant through the recruitment agency that he was an experienced Renault mechanic with an excellent command of spoken and written English, that this was a fundamental term of his employment, that it was apparent from an early stage that his level of English was limited and that his capacity to complete work in a timely manner was also an issue. The Complainant’s Solicitors refuted the Respondent’s assertions by letter of the 25th April, 2018 and stated that there “were clearly no substantial reasons for his dismissal and no fair procedure was followed….”
Findings and Conclusions:
Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” - ie there is a statutory presumption of unfairness unless the Respondent employer can show there were substantial grounds justifying the dismissal.
Section 6 (4) of the Unfair Dismissals Act [1977-2017] states that the dismissal of an employee “shall be deemed…..not to be an unfair dismissal, if it results wholly or mainly from one or more of the following”:
a) “the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
b) the conduct of the employee,
c) the redundancy of the employee, and
Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4)….. or that there were other substantial grounds justifying the dismissal”.
Section 6(7) of the Unfair Dismissals Act [1977-2017] provides that in determining whether a dismissal is unfair, regard may be had:
e) “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
f) to the extent (if any) of the compliance or failure to comply…..with the procedure….or with the provisions of any code of practice….”
I have carefully considered the parties respective and conflicting positions in relation to the Complainant’s level of English, his productivity rate, the disputed workplace exchanges between the Respondent and the Complainant and the application of the Respondent’s disciplinary procedures. The Respondent has stated that it wanted the Complainant’s employment to work out, that it needed a Cotech mechanic and that is why it went to the trouble and expense of recruiting from Poland. The Respondent further stated that it is a small company and that from a business point of view it could not allow the situation to continue in terms of the Complainant’s level of English and productivity. In my opinion this was a plausible and reasonable position for the Respondent to hold. In this regard, I am persuaded by the evidence of the SM who interacted with the Complainant on a daily basis and who outlined the difficulties she encountered with the Complainant including as regards communication, completing essential documentation and work rate. On that basis the Respondent’s position would generally fall within Section 6(4) of the Unfair Dismissals Act [1977-2017].
However, as is clear from Section 6(7) the Unfair Dismissals Act [1977-2017], I am also required to consider whether the Respondent dealt with its concerns in a reasonable manner in compliance with fair procedures and the company’s disciplinary procedure. The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns he/she may have about the poor performance or conduct of an employee and at the same time, to afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters. I have summarised the requirements of SI 146/2000 as follows:
· To comply with the general principles of natural justice and fair procedures;
· That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;
· That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;
· That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.
The case of Iarnród Éireann/Irish Rail V McKelvey  IECA 346 concerned the matter of legal representation in a workplace disciplinary process. The Court of Appeal enunciated the following principles of fair procedures to be afforded to an employee – in addition to the right to representation:
“(i) [the] right to know the nature of the complaint/allegation made against him;
(ii) [the] right to know the procedure to be followed in the course of the investigation;
(iii) [the] right to know the potential implications of the complaint/allegation should it be established, i.e. the sanction/sanctions that might be imposed;
(iv) [the] right to be heard in relation to the complaint/allegation and to make representations in relation thereto;
(v) [the] right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses;
(vi) [the] right to call witnesses in support of his stated position”.
The Court of Appeal’s judgement was subsequently approved by the Supreme Court  IESC 79 where Charleton J. made the following useful comments about the conduct of a disciplinary process:
“Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal. In Connolly v McConnell  IR 172, a basic approach to disciplinary proceedings was set as requiring that employers must not remove an employee “without first according to him natural justice.” Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her].” Hence, there should be as full an investigation of the relevant events as is reasonable in the circumstances before disciplinary action is taken, the employee should be notified of this so as to enable an answer to be given by him or her and to have the matter impartially decided”
In the present case, I am satisfied that the Respondent’s disciplinary procedure as outlined in the Complainant’s contract of employment is consistent with the principles outlined in SI 146/2000. The procedure sets out the twin objectives of securing improvement in an employee’s standard of work and treating an employee in a fair and consistent manner. It outlines the reasons why an employee maybe dismissed which include “a) Incompetence or poor work performance……c) Incapacity……f) Some other substantial reason” and provides for four stages ranging from verbal warning to dismissal. The procedure also states:
An employee is entitled to representation by a colleague at all stages of a disciplinary process”
An employee disciplined or dismissed as a result of disciplinary action has the right to appeal. Appeal must be submitted in writing by the employee…..within five working days of the employee receiving notification of the decision”
The Complainant has stated that he never received any letters of warning or a letter of dismissal, that the notes of meetings between the GM and SM of the 19th December, 2016 and the 14th March, 2017 were created for the WRC case, that he was not afforded representation or the right of appeal, that his level of English was evident from early on, that he was probated and that the English language and productivity issues only arose after his probation. On the other hand, the Respondent has stated that it followed its disciplinary procedure and the advice of its HR department, that the Complainant knew there were significant problems in relation to the two issues of English language and productivity, that the Complainant was issued with a written warning and final written warning on the 15th March and 13th September 2017 respectively, that he was accompanied at the dismissal meeting and that he did not appeal the dismissal decision. The Respondent has also rejected the assertion that letters or records were created for the purpose of the WRC case.
Having carefully reflected on matters, I find that I am not in a position to reconcile all of the conflicts of evidence between the parties. That being said, from the evidence presented I am satisfied as regards the following:
· There was no prior notification to the Complainant of the disputed meeting of the 14th March, 2017 which resulted in the issue of a written warning to him on the 15th March;
· There was no disciplinary meeting prior to the issue of the disputed final written warning to the Complainant on the 13th September, 2017;
· There was no prior notification to the Complainant of the meeting of the 23rd November, 2017 which resulted in his dismissal. Accordingly, I am satisfied that the Complainant was not advised or forewarned in advance that he may be dismissed from his employment and nor was he advised in advance of that meeting of the specific charges or allegations of misconduct upon which his dismissal may be based. In this regard, I note the uncontested evidence of the Complainant that prior to the meeting on the 23rd November, 2017 or for the purpose of that meeting, that he was not furnished with any specific complaints or details of incidents where his work was deficient or where mistakes were made by him due to his level of English;
· The Complainant was not afforded representation. In this regard, I am satisfied that representation should have been allowed at all of the disciplinary stages as specifically provided for in the Complainant’s contract of employment and in SI 146/2000. I am also satisfied from the evidence presented, that the Complainant’s request to be accompanied at the meeting of the 23rd November, 2017 was more for the purpose of translation than representation, as at that stage the Complainant had not been notified it was a disciplinary meeting.
In relation to an appeal, the Complainant’s evidence is that arising from the meeting of the 23rd November, 2017 and his exchange with the Respondent on the 24th November, he understood that nothing further could be done. In that regard, I note the GM’s evidence that he had answered “No” to the Complainant when asked by him if there was anything he could do and stated that the decision had been made. The evidence also suggests there was no written notification to the Complainant of his dismissal or the reasons therefor as the GM of the Respondent stated he did not recall a written letter of notification of dismissal and the Complainant stated that he did not receive any such letter. In any event, no such letter was presented to me. Notwithstanding the foregoing, I am of the view that there was nothing precluding the Complainant from appealing, the onus was on him to be aware that he could appeal to the “next level of management above the person making the disciplinary decision” as per his contract of employment and further, the contract does not state that the notification of the decision to dismiss must be in writing.
The Labour Court has stated in Philip Smith V Mark Leddy [UDD 1974] that - “It is a well established principle of this Court that where an employer adheres to correct procedures and where an employee is afforded their rights in an investigation of alleged wrongdoing and any subsequent disciplinary process, the Court will not substitute its views for those of an employer unless it judges that such views are outside the band of reasonableness”.
Having considered all the evidence, submissions and the legal principles already set out, I am satisfied that the process which led to the termination of the Complainant’s employment fell short of the requirements of fair procedures and the Respondent’s own disciplinary procedure. In particular, I am satisfied that the Respondent acted unreasonably in failing to provide any notification of disciplinary meetings to the Complainant and in failing to set out clear charges or complaints in advance, thereby enabling the Complainant to prepare his responses and avail of representation (and if necessary a person to assist in translation) at each of the disciplinary stages. On the basis of the lack of fair procedures leading up to the dismissal and at the dismissal stage, I find the dismissal was unreasonable. I also consider there was an appeals process open to the Complainant as per his contract of employment which he did not avail of. Overall, however, I find that the Respondent has not rebutted the presumption of unfair dismissal and I decide this complaint is well founded.
This complaint has been referred for adjudication under section 11 of the Minimum Notice and Terms of Employment Act [1973 – 2017]. Section 4(a) of the Minimum Notice and Terms of Employment Act [1973 – 2017] provides that the minimum notice which must be given by an employer to terminate the contract of employment shall be- “if the employee has been in the continuous service of his employer for less than two years, one week”. The Complainant has accepted that he received three weeks notice which is in excess of the minimum. Having considered the evidence and submissions, I decide this complaint is not well founded.
Section 8 of the Unfair Dismissals Act, [1977 – 2017] 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, as amended.
Section 7 of the Unfair Dismissals Act [1977-2017] provides that redress may consist of re-instatement, re-engagement or compensation. In the present circumstances, I decide that compensation is the appropriate remedy and I note the Complainant has selected this redress option also. The Complainant is required to mitigate his losses and to adopt a proactive approach in obtaining replacement employment. In that regard, the Complainant stated that he tried unsuccessfully to obtain alternative employment in Dublin and that he returned to Poland and secured a job as a general mechanic on the 15th January, 2018. Prior to his dismissal the Complainant was working as a qualified Cotech mechanic and was earning a gross weekly wage of €538.62. The Complainant provided evidence that his gross weekly pay as a general mechanic in Poland was €228.17. Taking account of the procedural flaws leading up to the dismissal and the Complainant’s financial loss, I award the sum of €7,000 for the unfair dismissal which I consider to be just and equitable having regard to all the circumstances.
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 stated, this complaint is not well founded.
Dated: 26th May 2020
Workplace Relations Commission Adjudication Officer: Anne McElduff
Unfair Dismissal, Disciplinary Procedures, Minimum Notice