ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029065
Parties:
| Complainant | Respondent |
Parties | Bartosz Bogucki | Dynniq UK Limited |
Representatives | The Complainant attended in person and was not represented | Mr. Stephen Brittain BL |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038800-002 | 17/07/2020 |
Date of Adjudication Hearing: 05/10/2021
Workplace Relations Commission Adjudication Officer: Enda Murphy
Procedure:
In accordance with 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 Respondent confirmed at the oral hearing that the correct legal name of the entity that employed the Complainant was Dynniq UK Limited. The Respondent consented to the Complainant’s application to amend the name of the respondent to reflect the correct legal entity of his employer for the purposes of the within complaint.
Background:
The Complainant commenced working for Company A in February 2015 as a Service Technician and his employment was transferred to the Respondent under a transfer of undertakings arrangement in April, 2019. The Complainant continued to work for the Respondent in this role until 30 June 2020 when he was dismissed from his employment. The Complainant claims that he was unfairly dismissed by the Respondent from his position within the meaning of Section 6 of the Unfair Dismissals Acts. The Respondent disputes the claim of unfair dismissal and claims that the Complainant’s employment was terminated by reason of misconduct while on a final written warning. |
Summary of Complainant’s Case:
The Complainant stated that he had an excellent work record with his employer during the period from February, 2015 until his employment was transferred to the Respondent in April, 2009. The Complainant stated that his professional reputation was tarnished by the Respondent and that he was mistreated after being issued with a final written warning in November, 2019. The Complainant stated that the final written warning was issued in relation to a claim that he had breached the company vehicle policy by leaving his company van running while attending to his duties. The Complainant claims that there was a custom and practice within the Respondent company whereby Service Technicians would leave their vehicles running while attending to their duties during cold weather. The Complainant stated that the Respondent was fully aware of the existence of this practice among its Service Technicians as it was possible to ascertain this fact from the tracking devices that were attached to the company vans. The Complainant stated that he was never informed by the Respondent that this practice was prohibited until he was subjected to disciplinary proceedings in November, 2019 in respect of a breach of the company vehicle policy. The Complainant stated that he was summoned to a disciplinary meeting in relation to this matter and issued with a final written warning. The Complainant claims that this sanction was totally disproportionate in the circumstances in light of the fact that he had an exemplary disciplinary record up to that juncture. The Complainant stated that a lesser sanction such as a verbal warning would have been sufficient given that he had made assurances to the Respondent that he would no longer engage in this practice. The Complainant stated that he was treated in a very poor manner by management of the Respondent company after being issued with the final written warning and was frequently subjected to totally unjustified remarks and comments about his performance. The Complainant stated that he was transferred by the Respondent to work on a different contract which involved washing traffic lights with effect from 8 June, 2020. The Complainant stated that this transfer was imposed on him by the Respondent as a penalisation for having raised a query with management in relation to work timesheets and the manner in which his wages were being calculated. The Complainant stated that his transfer to work on this contract amounted in effect to a demotion to the position of General Operative whereas he had been employed in the role as a Service Technician. The Complainant stated that the Respondent did not provide him with any written statement to confirm the changes to his terms and conditions of employment following his transfer to the new contract. The Complainant stated that he was required to participate in an on-call arrangement with another co-worker as part of his duties when assigned to the previous contract, but the Respondent failed to provide any clarification as to whether he was still required to make himself available for on-call duties following his transfer to the new contract. The Complainant stated that he was not aware of any requirement to make himself available for on-call duties on the weekend of 13/14 June, 2020 and that the Respondent had not communicated any such requirement to him. The Complainant stated that he was working on 12 June, 2020 and finished at the normal time of 4pm and had not received any communication from the Respondent up to that juncture to notify him of the requirement to be available for on-call duty that weekend. The Complainant stated that his work mobile phone was powered off after 4 pm on Friday, 12 June, 2020 and that he didn’t notice the missed call from his Manager until he switched on his phone the following Monday morning (15 June, 2020) prior to commencing his shift. The Complainant stated that this message was the first indication that he had received from management of any requirement to be available for on-call duty the previous weekend. The Complainant disputes the Respondent’s contention that his manager attempted to contact him several times prior to 4pm on Friday, 12 June, 2020 to inform him about the requirement to be available for on-call duty for that weekend. The Complainant stated that the disciplinary process which was conducted by the Respondent in relation to this matter was totally unfair and claims that he was not afforded a fair opportunity to put forward his response in relation to the allegations of misconduct. The Complainant stated that he requested the use of an interpreter at the meeting where he was suspended but this request was denied by the Respondent. The Complainant stated that the Respondent also refused to provide him with the relevant telephone call records to support their contention that management had attempted to contact him on numerous occasions on 12 June, 2020. The Complainant claims that the decision by the Respondent to dismiss him from his employment was totally lacking in fairness both substantively and procedurally. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant had been issued with a final written warning in respect of allegations of misconduct prior to the events which ultimately resulted in his dismissal. The incident which gave rise to the Complainant being issued with a final written warning occurred in November, 2019 when he was found guilty of misconduct in respect of an incident in which he had knowingly left his company vehicle running, unlocked and unattended. The Respondent submits that in leaving the company vehicle unlocked and unalarmed while attending to his duties, he had acted in breach of both his contract of employment and the Company Vehicle Policy. The Respondent submits that it is against the background of the final written warning that the matters at issue in the instant claim of unfair dismissal should be considered. The Respondent submits that the Complainant and another employee, Mr. A, operated a rotating shift system, where they would be on call at weekends on a weekend on/off basis. On 2 June 2020, Mr. B (General Manager) had a conversation with the Complainant to discuss re-assigning him from the specific contract on which he had been working up to that point and moving him to a maintenance contract which was based in Co. Dublin. The Complainant had been working on an on-call arrangement up to that juncture and it was made clear to him by Mr. B that there would be no change to this arrangement when he moved to the maintenance contract. The Respondent submits that on 12 June 2020, Mr. B was informed by the Service Delivery Manager (Mr. C), that he had been informed by another employee that the Complainant would not be participating in the call-out services for the maintenance contract on the weekend of 13/14 June 2020. The Respondent submits that the Complainant was aware that he was on call on the weekend of 12 June 2020 and that the on-call arrangement was a longstanding feature of his working arrangements. On that weekend, the Complainant failed to answer repeated calls (five in total) from Mr. C and in refusing to do so wilfully avoided his on-call duties that weekend. The Respondent submits that the effect of the Complainant’s decision to absent himself from his on-call duties on the weekend of 12 June 2020 was to give rise to the risk that the Respondent would be in breach of the contract by failing to fulfil its maintenance obligations under that contract. The Respondent submits that this decision, when considered in the context that the Complainant was at the relevant time the subject of an active final warning, provided reasonable grounds for the dismissal of the Complainant. The Respondent submits that the Complainant was required to attend a disciplinary meeting on 17 June, 2020 to discuss his failure to cover his scheduled call-out duties over the weekend in question. The Respondent sought to put a number of questions to the Complainant at this meeting as part of the investigation, but he refused to answer and asked that the questions be e-mailed to him. The Complainant was informed at this meeting that the Respondent had telephone records to show that his manager had telephoned him on 12 June, 2020 and was shown a copy of these records. The Complainant ultimately refused to answer any questions at this meeting and the Respondent concluded by reading out a letter informing him of his suspension pending further investigation of the matter. The Respondent submits that the matter was subsequently considered by an independent reviewer within the Respondent organisation. Mr. D considered the evidence and held that the Complainant’s behaviour amounted to misconduct and when taken in conjunction with the fact of his existing final written that he should be dismissed from his employment. The Respondent submits that the General Manager (Mr. B) wrote to the Complainant on 29 June, 2020 to inform him of the requirement to attend a disciplinary outcome meeting on 30 June, 2020 during which the Complainant was informed that the decision had been taken to dismiss from hie employment. The Complainant subsequently appealed the decision to dismiss, and an investigating manager was appointed to hear the appeal. The Complainant was informed by letter dated 15 July, 2020 that the investigating manager appeal the investigating manager had upheld the decision to dismiss him from his employment. Evidence of Mr. B (General Manager) Mr. B stated that he is the General Manager of the Respondent’s Irish business and has responsibility for all contracts within the State. Mr. B stated that the Complainant’s employment transferred to the Respondent in April, 2019 by way of a transfer of undertakings after the business had obtained a contract from another operator. Mr. B stated that the Complainant was issued with a final written warning in November, 2019 in respect of a breach of the company’s vehicle policy after he had left his company vehicle running, unlocked and unattended while carrying out his duties. Mr. B stated that the final written warning was issued to the Complainant following a thorough investigation on the basis that this behaviour amounted to misconduct. The Complainant was informed that the final written warning would be disregarded for disciplinary purposed after 12 months provided that his conduct and performance improved to a satisfactory level. Mr. B stated that the Complainant was re-assigned to work on a different contract in June, 2020 but there wasn’t any change to his terms and conditions of employment arising from the re-assignment. Mr. B stated that the Complainant had been working on an on-call basis up to his re-assignment and that he confirmed to him that this requirement to work on-call would not change after he moved to work on the new contract. Mr. B stated that the Complainant was scheduled to participate in the call-out services on this new contract for the weekend of 13/14 June, 2020. However, Mr. B was made aware by another colleague on 12 June, 2020 that the Complainant wasn’t willing to participate in the call-out duties for that weekend. Mr. B stated that his colleague attempted to contact the Complainant on his work mobile phone and by e-mail, but the Complainant had his phone switched off. Mr. B stated that the failure of the Complainant to make himself available for on-call duties over that weekend resulted in the Respondent not being able to fulfil the terms of its contract with the specific client in question. Mr. B stated that there was an investigation and disciplinary process undertaken in respect of this matter and the relevant evidence and telephone records from the weekend in question were put to the Complainant. Mr. B stated that the matter was also referred to an independent reviewer within the company and ultimately the decision was taken to dismiss the Complainant for misconduct arising from the fact that he was on an existing final written warning together with his failure to make himself available for on-call duty on the weekends of 13/14 June, 2020. Mr. B stated that the Complainant was informed of the decision to dismiss at a meeting on 30 June, 2020. Evidence of Mr. C (Service Delivery Manager) Mr. C stated that he is employed by the Respondent as a Service Delivery Manager and was the Complainant’s line manager at the material time relevant to the within complaint. Mr. C stated that the Complainant was working on an on-call arrangement which was operated on a week on/week off basis. Mr. C stated that the Complainant was scheduled for on-call duty on the weekend of 13/14 June, 2020. Mr. C stated that he received a telephone call from the Complainant’s colleague on 12 June, 2020 to confirm that the Complainant was not making himself available for on-call duty that weekend. Mr. C stated that he attempted to contact the Complainant by telephone at 3:30 pm on 12 June, 2020 to discuss this matter but there was no answer from him. Mr. C stated that he was aware the Complainant was working at that time. Mr. C stated that he attempted to contact the Complainant again that day at 4:20 pm and on the following day but there was no answer from him. Mr. C stated that he subsequently had to contact the Complainant’s colleague to request him to cover the on-call work instead of the Complainant for that weekend. Mr. C stated that he was fully satisfied the Complainant was aware that he was scheduled for on-call duty that weekend but had absented himself without permission from the company. Evidence of Mr. D (Head of HR) Mr. D stated that he is employed by the Respondent as Head of HR for its UK business and was working in this role at the material time of the Complainant’s dismissal. Mr. D stated that he was fully aware of the disciplinary incident in November, 2019 which resulted in the Complainant being issued with a final written warning. Mr. D stated that it is clear from the Respondent’s disciplinary policy that wilful negligence of company property is considered gross misconduct and that the initial incident involving the Complainant fell within the parameters of gross misconduct. Mr. D stated that the decision was taken not to dismiss the Complainant for this incident in light of his previous good conduct and that a final written warning was considered the appropriate sanction in the circumstances. Mr. D stated that he was contacted by the General Manager (Mr. B) on 15 June, 2020 for advice following the Complainant’s failure to partake in the on-call duty the previous weekend. Mr. D stated that the Complainant was invited to attend a disciplinary meeting to explain his actions arising from this incident and was informed of his right to representation at the meeting. Mr. D stated that the Complainant was allowed to provide a written statement which was taken into consideration as part of the investigation and disciplinary process. Mr. D stated that the decision to dismiss the Complainant was taken by the Manager of the Unit (Mr. B) who had taken advice from him in relation to the matter. Mr. D stated that an independent investigation into the matter was also conducted by another manager who also came to the conclusion that the Complainant’s behaviour warranted the sanction of dismissal. Mr. D stated that the Complainant was also provided with the opportunity to appeal the decision to dismiss him, and that the decision was upheld following this appeal. |
Findings and Conclusions:
The Relevant Law Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides: “(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. … (4) 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 one or more of the following: (a) not relevant (b) the conduct of the employee (c) not relevant (d) not relevant (6) 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) of this section or that there were substantial grounds justifying the dismissal. (7) Without prejudice to the generality of subsection (1) of this section, 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 to comply by the employer, 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) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.” The combined effect of the above provisions of the Act requires me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent's position and circumstances, would have done so. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process. The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly [2015] 26 E.L.R. 229 where it was held 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 …. “. In the case of O'Riordan v Great Southern Hotels UD1469/03 the EAT held that: "In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrongdoing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing." The fact of dismissal was not in dispute between the parties. The Respondent contends that the Complainant was dismissed on the grounds of misconduct after he had negligently failed to make himself available for scheduled on-call duties on the weekend of 13/14 June, 2020. The Respondent contends that this dismissal of the Complainant in the circumstances was among the range of reasonable responses which were open to company having regard to the fact that the Complainant was at the material time in question the subject of an active final written warning. Therefore, the two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and (2) whether the dismissal adhered to the principles of fair procedures. I will firstly consider whether the Respondent acted in a reasonable manner in dismissing the Complainant in the circumstances of the instant case. In considering this matter, I am satisfied that I am obliged to consider the reasonableness of the decision to dismiss in the context of both the incident that occurred in November, 2019 which resulted in the Complainant being issued with a final written warning and the events that occurred over the weekend of 13/14 June, 2020 whereby the Complainant was not available for on-call duty. In relation to the former incident, I find that the Respondent acted in a fair and reasonable manner in terms of the decision to issue the Complainant with a final written warning arising from his breach of the Company Vehicle Policy. In coming to this conclusion, I note that the Complainant did not dispute that he had left his company vehicle running and unattended while performing his duties at the material time in question and he accepted that these actions were in breach of the Company Vehicle Policy. I have examined the Respondent’s Company Vehicle Policy and it clearly states that all company vehicles “must be locked and alarmed for insurance to be valid”. I further note that the Complainant’s contract of employment included explicit provision that he was obliged to comply with the aformentioned policy. It is also clear that the Respondent’s Disciplinary Policy and Procedure provides that “deliberate, wilful or negligent use of or damage to company property” is regarded as gross misconduct. It is clear that the actions of the Complainant in leaving his company vehicle running while unattended fall within this category of behaviour. I am satisfied that the aforementioned policies had been brought to the Complainant’s attention by the Respondent at the material time in question when this incident occurred and that there was an obligation on him to take the appropriate steps to read and familiarise himself with same. Having regard to the evidence adduced, I find that it was not unreasonable in the circumstances for the Respondent to have issued the Complainant with a final written warning arising from his conduct in relation to this matter. I note that it was against this backdrop of the Complainant having been issued with a final written warning that the decision was ultimately taken to dismiss him from his employment arising from the incident surrounding his availability for on-call duty on the weekend of 13/14 June, 2020. The was a clear conflict of evidence between the parties on the question as to whether the Complainant was required to make himself available for on-call duty following his transfer to work on a different contract. Having carefully considered the evidence of both parties, I prefer the Respondent’s evidence on this matter, and I have found the evidence of Mr. B to be more compelling and I accept his evidence that he informed the Complainant on the transfer that there wouldn’t be any change in his requirement to participate in the on-call arrangement. In the circumstances, I find that the Complainant knowingly absented himself from his on-call duties on the weekend in question without the permission of his employer. I am satisfied that the actions of the Complainant in failing to make himself available for on-call duty on the weekend in question without prior permission amounted to serious misconduct. Furthermore, I am satisfied that the nature of the misconduct in question in relation to this incident when taken in conjunction with the fact that the Complainant was already subject to a final written warning at the material time in question, was punishable with a disciplinary sanction of dismissal in accordance with the Respondent’s Disciplinary Policy and Procedures. In considering the fairness or otherwise of the dismissal, I am also obliged to consider if the sanction of dismissal was proportionate to the alleged misconduct the circumstances. The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical Services Ltd [2012] 23 E.L.R.195 that: “The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?”. Having regard to the serious nature and gravity of the misconduct in question, I find that the actions of the Respondent in terms of the sanction of dismissal was proportionate in the circumstances and was within the range of reasonable responses open to it and that substantial grounds did exist to justify his dismissal. Accordingly, I find that the sanction of dismissal was proportionate in the circumstances of the present case. The next issue which I must consider relates to the procedural fairness or otherwise of the Complainant’s dismissal. The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 S.I. No. 146/2000 sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures, which include that: 1. the details of the allegations or complaints be put to the employee concerned; 2. the employee concerned be given the opportunity to respond fully to any such allegations or complaints; 3. the employee concerned is given the opportunity to avail of representation; and 4. the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.
I have carefully considered the manner in which the investigation and disciplinary process was conducted in the present case, and I am satisfied that there were a number of aspects of the process which did not meet the required standards of procedural fairness. The key area of procedural unfairness that I have found in relation to the process relates to the multiplicity of roles and involvement undertaken by Mr. B (General Manager) throughout the entirety of the process. Having regard to the evidence adduced, I am satisfied that Mr. B had a significant and integral role in all stages of the investigation/disciplinary process from its instigation until the decision was taken to dismiss the Complainant following the disciplinary hearing. In this regard, I have taken cognizance of the fact that Mr. B was the person who conducted the initial investigation meeting with the Complainant on 17 June, 2020. I also note that Mr. B took the decision to suspend the Complainant on full pay pending the outcome of the process and that he was the person who communicated this decision him on conclusion of the aformentioned meeting. It is also clear that Mr. B conducted the disciplinary hearing and that he was the person who ultimately took the decision to dismiss the Complainant. In the circumstances, I am satisfied that Mr. B played a significant role in both the investigation and disciplinary process and that there was an insufficient degree of separation between both stages such as to raise legitimate concerns in relation to the overall fairness of the process. I also note the Respondent’s evidence that the incident of alleged misconduct involving the Complainant arising from his failure to make himself available for on-call duty was considered by an independent reviewer who was a senior manager within the Respondent’s UK operations. I further note that this review was conducted after the initial disciplinary investigation meeting between the Complainant and Mr. B (General Manager) and that the independent reviewer also concluded that the Complainant was guilty of the misconduct charge laid against him and that the sanction of dismissal was warranted. However, I also have serious reservations about the manner in which this review was conducted, and I find that it was lacking in openness and transparency and did not meet the required standards of procedural fairness. In coming to this conclusion, I note that the process of referring a disciplinary matter to an independent reviewer (such as that which pertained in the within case) is not provided for in the Respondent’s Disciplinary Policy and Procedures and it would appear from the evidence adduced that the Complainant was not afforded any prior notification or confirmation that this review was to form part of the investigation into the matter. Having regard to the evidence adduced, it appears that this review was conducted exclusively as a paper-based exercise and the Complainant was not afforded any opportunity by the reviewer to partake in the process or to put forward his response to the allegations. I note that the first indication provided to the Complainant that this review had taken place was in his letter of dismissal dated 30 June, 2020 and it appears that the conclusions of the reviewer were afforded significant weight by Mr. B in terms of reaching the decision to dismiss. Having regard to the totality of the evidence adduced, I am satisfied that the aforementioned procedural deficiencies which occurred throughout the disciplinary process, when taken together, has fatally imperilled the fairness of the Complainant’s dismissal. However, I also find that the Complainant, through his behaviour contributed significantly to his dismissal and this has been taken into account in considering redress. In the circumstances, I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is well founded. |
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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.
I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded. I find that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that the Complainant was being paid a net monthly wage of €2,744.29 by the Respondent at the material time of his dismissal. The Complainant adduced evidence that he obtained alternative employment in July, 2020 for a period of six months in respect of which he has earning a net weekly wage of €300.00. The Complainant adduced evidence that he has been pursuing an educational course since the alternative employment was terminated with a view to enhancing his future employment prospects. I afforded both parties the opportunity to make submissions in relation to the Complainant’s loss arising from his dismissal and his efforts to mitigate those losses, of which I have taken into account in deciding the quantum of the award of compensation. I find that the Complainant contributed significantly to his dismissal, and I determine that, through his conduct, was 75% responsible for his dismissal. Having regard to this fact, I deem that an award of €7,500.00 to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from his dismissal. |
Dated: 15th February 2022
Workplace Relations Commission Adjudication Officer: Enda Murphy
Key Words:
Unfair Dismissals Acts, 1977 – 2015 - Section 6(4) – Misconduct – Dismissal Procedurally Unfair - Complaint Well Founded – Compensation Awarded |