Complainant

Respondent

Parties

Keiran  O'Leary

Bord Gais Energy Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Graham Bailey

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-00064101-001

14/06/2024

The Complainant referred their complaint to the Commission on the 14th of June 2024 under the Unfair Dismissals Act. They had been employed by the Respondent from the 31st of May 2021, having transferred employment from British Gas, until their dismissal on 25th of January 2024

2022 Issue

In a previous year, 2022, the Complainant had been involved in an issue with his manager in relation to an offer he made to a respondent customer for plumbing work which is not normally carried out by the Respondent. He had misunderstood and thought  that this was allowed,  given that the respondent did not carry out this type of work and he was not in direct competition with them. This excuse was accepted by his manager, and nothing more came of it and there was no disciplinary involved. This issue was closed without further action, but was then tabled later as part of the 2023 issue.

Investigation 2023

In April 2023 he received notice of an investigation regarding two complaints occurring between January 30th and April 4th, 2023, and he attended an interview and completely disputing both allegations. The investigation continued without him including being given any opportunity to question any witnesses or complainants.

In July 2023 he received a letter that an additional complaint had been added to the investigation however this was the same complaint that had been dealt with in June 2022, previously.

Medical Examination

On August 18th he raised a grievance regarding the investigation procedure which was not dealt with, and he was sent for a medical appointment. It is the Complainants view that this appointment was too short and not appropriate for his issues. The Respondent Doctor certified the Complainant as fit to engage.

Disciplinary Hearing, Dismissal and Appeal

On the 11th of January the disciplinary hearing was held, and the 2022 incident was referred to with the 2023 complaints and there was no evidence presented of 2023 issues.

On the 25th of January the Complainant was dismissed for Gross Misconduct which he appealed, but this was not upheld.

It is the Complainants case that the investigation and disciplinary process were unfair and unreasonable. Further than the process was contrary to the Respondent procedures.

It is the Complainant case that he has not been allowed to question witnesses and that an incident from 2022 was part of the decision-making process and that examples given were not, as per the policy, in direct competition with the Respondent and that the work was not actually performed.

Further that there were too many people involved in the process and carried out by people who have no understanding of the engineer’s role.

The Complainant entirely disputes the allegations that he took cash from a customer and asserts that there is no proof of this.

Losses

The Complainant set out his losses in the following:

·        Quarterly Bonus

·        Overtime

·        Profit share2022-23 and 2023-24.

·        Lost earnings 25th January to 18th Feb 2024

·        Travel and administration costs.

Complainant Case Summary

The Complainant case, in summary, is:

·        He was not afforded a proper medical examination.

·        An historical  and dormant issue was raised and tainted the decision- making process.

·        Investigation, Disciplinary and Appeal were unfair and unreasonable.

·        The investigators had no understanding of the Engineer role.

·        He had  not given an opportunity to cross examine witnesses.

·        That there is no proof he took cash from a customer

The complainant was dismissed for gross misconduct following a thorough process to ensure complete fairness.

On the 4th of April a complaint was received from a customer that a “nixer” was offered by the Complainant and on the 6th of April a second allegation was received of using second-hand parts and a request to be paid in cash. This was one of a multitude of such instances and was investigated with a number of witnesses, both internal and customers.

The respondent carried out an investigation and following this a disciplinary hearing where the Complainant was dismissed for gross misconduct.

It is the Respondent’s case that having investigated the complaints from two separate customers. Following the first investigation meeting respondent employees KG, LL and SW were interviewed. The investigators also interviewed Customer A and Customer B and held further investigation meeting in the month of June.

In July, Customer C raised an issue with the Respondent of the Complainant offering to carry out work in direct competition with the Respondent. The Complainant was informed of this and that it was now included. The Investigation paused due the ill health of the Complainant and resumed in January 2024 when  the Complainant was dismissed for gross misconduct.

The Respondent relies upon the cases Looney & Co ltd  v Looney UD 843/194,  Foley v Post Office [2000] ICR 1283 referenced in Doyle v Asilo commercial limited [2008] IEHC 445 that it is not for the tribunal to establish the guilt or innocence of a Complainant but to consider what a reasonable employer would do in the facts presented.

The Respondent further sets out that the Complainant had the benefit of the WRC Code of Practice and Grievance and Disciplinary Procedures (SI 146/2000) and of natural justice. Quoting from Murray v Meath County Council, UK 43/1978 they set out that no award is due where a complainant is responsible for their own dismissal.

In conclusion, the Respondent sets out that the claims of the Respondent are not valid and where there may be minor issues in procedure these have no implication on the final decision.

Jurisdiction

The Complainant made his complaint on the 14th of June 2024 having been terminated on the 25th of January bringing him within the 6-month time limit. He also has more than 12 months service with the Respondent giving him access to the Unfair Dismissals Act.

Medical

It is important that I deal with the medical issue first. I note the issue raised by the Complainant, but it is not for the WRC to speak on the work of a Medical Practitioner. This is outside my remit and the remit of the complaint lodged with the Commission.

Burden of Proof

It should be borne in mind that under s6 of the Unfair Dismissals Act 1977, a dismissal is presumed to be unfair, and it is the Respondent that bears the burden of proof in substantiating that the dismissal was fair on the balance of probabilities.

2022 Incident

Of import is the 2022 incident. It is a concern that this was raised as part of the 2023 investigation, it having never led anywhere. However, it is raised in the investigation documents and presumably was there for the decision makers in this matter to see. I see no evidence in the documents that it was redacted, but it is addressed by the Respondent who has assured all concerned it did not play a role in the final decision and appeal. The Complainant contends that the matter of their dismissal is unfair on this basis and for other reasons to be dealt with below. I am mindful of the Clarke J, decision in Rowland v An Post [2017] IESC 20,

 “errors of procedure can be corrected by appropriate measures being taken before the process comes to an end.”

It is the respondents’ position that they have excluded the matter of the 2022 incident, and it is reasonable to take that view following Boyle v An Post [2015] IEHC 58 that the process requires fair procedures, not perfect procedures; that the law does not demand the impossible. However, I am not entirely satisfied that this had no bearing on the ultimate decision to dismiss and refusal of the appeal. In the investigation and again in cross examination it was clear that the 2022 issue was being conflated with the 2023 issue, being described as a third complaint of a similar nature and the fact is that the 2022 issue was in the general consideration, albeit without the intention of doing so.

Question of Witnesses.

The Complainant sets out that he was not allowed to question witnesses, and the Respondent asserts that he was allowed to respond. The Respondent relies upon SI 146 of 2000, that the fair balance of natural justice has been observed. It should be noted that the SI does not offer anyone an absolute right to confront or cross-examine witnesses. It says that procedures “may” allow for this. I have had sight of the Respondent Disciplinary policy which is silent on the matter of cross examination in disciplinary matters.

As an issue, it is not necessarily unreasonable for the Customers who made complaints to be part of the investigation, and not the internal disciplinary process, and I see no reason for the Respondent to make them available. However, the evidence from those should be treated with some caution in making a serious decision on a person’s livelihood. In Mooney v. An Post [1998] 4 I.R. 288, in which Barrington J. explained:

“The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case.”

Having considered all the circumstances in this case, I am of the mind that the Respondent did not completely nullify the Complainants ability to mount a defence at the disciplinary hearing and the Complainant was given an opportunity to respond to the statements. However, I am also mindful that the Respondent should have considered the weight to be given to evidence such as this.

Investigators Ability to Understand the Role

It is raised by the Complainant that investigators did not have sufficient understanding of the role, and this is shown in the course of the investigation. However, they are not required to be au-fait with every aspect of the operations of the Respondent, but to be skilled in investigations and to establish the facts in the case. I do not find that the Investigators knowledge of the role of Engineer to be an issue where they were capable of gathering such understanding, as necessary.

Clause 17 and Customer Evidence

In cross-examination of the Complainant he admitted under affirmation to having signed his contract of employment and to having an earlier contract with an associated organisation with much the same provisions.  Clause 17 of the Contract signed by the Complainant sets out that “Outside Activities” are forbidden and that this would have been clear in 2022. From the 2023 issue the customer interviews are the only evidence of an attempt to be in competition with the Respondent.

The Customer interviews are certainly probative, but not dispositive of actions of the Complainant. There is an issue as to how much weight can be given to these where the Complainant has no means to challenge the veracity of the same. However, I see no logical reason for either or both customers to fabricate complaints and certainly not of such a similar nature. For this reason, I conclude there was a case to be answered.

Breach of Procedures

 It is clear, and admitted, that the Complainant had breached some procedures of the Respondent in failing to disclose a negative warranty call with his supervisor and instead calling another engineer. Using their own parts does not appear to be warranted regardless of its well-meaning or intention and the Complainant has fault in this and the subsequent events.

Respondent’s Process

Besides some minor issues which are of no consequence, the Respondent procedures are sound and were carried out well. The exception to this is the issue of the 2022 matters becoming conflated with the 2023 incident. It is the final decision of the disciplinary hearing that is in question as to whether it was the decision of a reasonable employer, and this follows through to appeal.

Burden of Proof and Balance of Probabilities

The burden of proof lies with the Respondent on this matter. On the balance of probabilities, something untoward has happened in 2023 that led to a fully warranted investigation and a fully warranted disciplinary process to be carried. It follows that some form of sanction could be applied. The Respondent has made a good case of demonstrating robust procedures with some minor errors in that process. However, the 2022 issue continues to raise concerns for the Commission.

The behaviours and actions of the Complainant are not commendatory in that he has breached Respondent policy, but the inclusion of the 2022 issue in the consideration of the whole matter was not appropriate and greater steps should have been taken to ameliorate the effect of this on the disciplinary  decision and appeal process, which, on the balance of probabilities,  led to the ultimate sanction of dismissal for gross misconduct.

As per Bank of Ireland v Reilly [2015] IEHC 241, the test is the response of a “reasonable employer” On the basis of the evidence presented to me it does not appear to be the decision of a reasonable employer; to disregard other sanctions short of dismissal. On evidence given, a more reasonable approach would have been to consider another sanction. For this reason, I have concluded that the Respondent, in not considering other sanctions, escalated to dismissal too soon; rendering the dismissal unfair.

Remedies

The Complainant has set out a description of losses and has not sought re-engagement or re-instatement. However, I am required to consider these as a remedy.

S 7(1)(a) provides that reinstatement shall be in the position which the employee held immediately before dismissal on the terms on which they were employed before and deemed to have commenced on the day of the dismissal. Reinstatement is entirely within the discretion of the Adjudicator, having regard to all the circumstances. In An Bord Banistíochta Gaelscoil Moshíológ v Labour Court [2024] IESC 38 the Supreme Court addressed the matter of reinstatement.

“The remedy of reinstatement under s. 7(1)(a) can normally be said to be only applicable in a case where the WRC or Labour Court considers that the employee’s dismissal has been totally unfair and unjust, such as to require the employer to take the person back in the same job, without any break in service or loss of pay, and notwithstanding the inevitable breakdown in the relationship between them. It is a very strong remedy, and is only applicable in clear cut cases, where it is the appropriate response to perhaps high-handed and unjustifiable conduct on the part of an employer, and where any other remedy is not sufficient vindication of the employee”.

In all the circumstances of this case, where there is an absolute breakdown in trust between the parties and where the Complainant is already successfully employed in another role; I do not find reinstatement nor re-engagement a suitable remedy.

Compensation

The Respondent has submitted that losses quoted by the Complainant are excessive and that he had taken up a role shortly after his dismissal for a brief period of time. He resigned where this role was not a suitable fit for him and found another role soon thereafter. It is not the Respondent’s fault that he left this job after successfully securing it and to that end the Respondent’s exposure in compensation is limited. However, given that I have concluded that the dismissal is unfair by way of failing to consider other sanctions and that reinstatement is not appropriate I must move to compensation for losses.

Section 7(1)(c) of the Acts: -

(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,

Section 7(2)(c) provides that in examining the financial loss, an Adjudicator must have regard to the measures adopted by the employee to mitigate his loss. The legislation does not allow an Adjudicator to award compensation in an amount that goes beyond the financial loss attributable to the dismissal.

In assessing redress, I take account of the part played by the Complainant and the evidence presented in addition to his securing a new role in the aftermath of his dismissal. The Complainant has not provided sufficient details of his loss and has only outlined a description of these.

Therefore, as an award of compensation for unfair dismissal is to make reparation for financial loss actually incurred in consequence of a dismissal taking into account the Complainant has not provided specific details on his attempts to mitigate the loss and I am mindful of the decision of the Labour Court in Cityjet and Ramon Sanchez Gil (UDD215) where the Court removed compensation from an Adjudicator’s decision where there was no demonstration of mitigation of loss.

Taking into account all the circumstances of this case I am awarding the Complainant compensation under the Acts in the amount of €5289.08 i.e. four weeks’ pay as is just and equitable in all the circumstances.

CA-00064101-001 Section 8 of the Unfair Dismissals Act, 1977: 

For the reasons given above I find the complainant is well founded and I award compensation of €5289.08 i.e. four weeks’ pay as is just and equitable in all the circumstances.

Dismissal, right to cross examine, contributory, failure to mitigate loss, previous incidents, probative evidence.