ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051051
Parties:
| Complainant | Respondent |
Parties | Shane Quinn | Keltic Renewables |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Jennifer Cunningham, Cosgrove Gaynard Solicitors | Dermuid Jones |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00062683-001 | 09/04/2024 |
Date of Adjudication Hearing: 21/08/2024
Workplace Relations Commission Adjudication Officer: Conor Stokes
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.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings. The complainant and a witness gave their evidence under affirmation. Two witnesses or the respondent gave their evidence under affirmation. Cross examination of all witnesses was facilitated. |
Summary of Respondent’s Case:
The respondent submitted that it terminated the complainant's employment for two main issues. The first was that he drove a company van with no insurance to do so, on the morning of 16 February 2024. The second was that the installation PV panel was not undertaken properly in December 2022, and this only came to light on 15 February 2024. The respondent submitted that the complainant admitted to driving a van without insurance and that although he denied engaging in a substandard installation, he was not in a position to provide any clarification on what had happened. The respondent submitted that the complainant was brought into a meeting where these matters were put to him and that the directors of the respondent concluded that both offences amounted to instances of gross negligence and the complainant was dismissed with immediate effect. The first witness was the director of the respondent company. He stated that the complainant had admitted that he was driving the van without the appropriate insurance. The complainant was also not able to give a good reason as to why the roof hooks were not properly installed. He confirmed that the complainant was dismissed for gross negligence. He confirmed that there were no disciplinary procedures in place, that there was no definition of what amounted to gross negligence, and also confirmed that the complainant was not given the opportunity to appeal the decision to terminate his employment. Under cross examination the witness confirmed that both the director and his business partner were present when the complainant was dismissed on the Friday afternoon. He stated that they had photos and videos provided by the end user which showed the substandard fittings that had been used in the installation two years previously. He confirmed that the complainant had said to him that he drove the van as he was just trying to get to work. The second witness for the respondent was the business partner. He indicated that he was present at the meeting on the Friday afternoon and that the complainant admitted to driving the van. The complainant’s representative was offered the opportunity to cross exam this witness but declined to do so. |
Summary of Complainant’s Case:
The complainant submitted that he was not provided with any procedures when he was dismissed. He submitted that he was not driving the company van without insurance as alleged. He submitted to start the van was being driven by somebody else. As to the substandard fixtures, it was noted that there was a standard installation pack that included everything that was required to perform an installation. The complainant submitted that he found another job two weeks after he was dismissed and confirmed that his gross wage was €800 per week when working for the respondent. The complainant stated in his evidence he did not drive the company van but that his colleague picked him up and drove him to a location but then received some bad news and had to leave the complainant for a short time before he returned him home. The complainant stated that the fixings were not he packaged together but rather they had to gather up the pieces separately from the stores before going out on a job. He stated that he did not use substandard fixings for the job in December 2022 and suggested that in the intervening two-year period, somebody else had moved the fixings that he put in place. He noted that anything was possible on a building site. The complainant noted that he was not fired on the Friday but that it occurred at a meeting at 8:30 on Monday, 19 February 2024. He stated that after going back to the office on the Friday afternoon, the issue of the fixtures was raised but they then went out to finish off the job that afternoon. He noted that he thought it was a ventilation job that they completed at that point. Under cross examination it was put to him that he admitted driving the van but he denied that he did so. He was asked why he gave a number of different accounts of driving the van, the pick-up situation and whether his colleague had a personal emergency at different stages during his preparation for the hearing. However, the complainant was not able to shed any light on the differences between his various accounts. Second witness for the complainant stated that he was driving the van. |
Findings and Conclusions:
Under the Unfair Dismissals Act, the burden of proving that a dismissal was fair rests on the employer. The respondent submitted that they did not have a written procedure in place but noted that they gave the complainant the chance to explain himself. It was confirmed that he was called into a meeting, without any prior notice as to what that meeting was about. It was noted that some of the paperwork, photographs and video footage were only provided to him at that meeting. It was noted that the two directors conferred at the meeting and decided that conduct of the complainant - in driving the company van without insurance, and also of his use of substandard materials on a solar panel installation 18 months previously, amounted to instances of gross negligence. Although the date and circumstances of the meeting were not agreed between the parties, it is common case that the complainant was dismissed at that meeting and was not provided with the opportunity to appeal the decision. He was never informed that he had a right to be accompanied to the meeting either. Section 6(7) of the Act states as follows: (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 Arising from the foregoing, I am satisfied that the respondent did not follow any basic procedures and given the lack of notice of the meeting, the lack of procedures, of not being informed that he could be represented or accompanied by somebody to the meeting, and finally not being given the opportunity to appeal the dismissal decision, I find that this amounts to an unfair procedure and that the dismissal itself amounts to an unfair dismissal. Section 7 of the Act states as follows: 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (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, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. In circumstances where the complainant submitted that he was out of employment for only two weeks, the Act provides for an award of loss of earnings only. In this case, the loss of earnings amounts to two weeks wages at €800 (gross) per week. |
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.
Having regard to all the written and oral evidence presented in relation to this case, my decision is that the complainant was unfairly dismissed. In accordance with the provisions of the act, I direct the respondent to pay the complainant compensation equal to two weeks wages, i.e. €800x2: €1600, less any lawful deductions. |
Dated: 27th of August 2024
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Unfair Dismissals Act – lack of procedures in the dismissal – unfair dismissal established |