Complainant

Respondent

Parties

Stephen  Fitzgerald

Euro Quality Cladding Eqc

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-00067383-001

14/11/2024

The respondent maintains that the dismissal of Mr. Fitzgerald was both  procedurally fair and substantively justified. The dismissal was carried out in accordance with the respondent’s internal policies and procedures, and the company acted fairly, and lawfully at all times.

The complainant was employed by EQC as a driver from May 2nd,2023, until the date of dismissal on October 22nd, 2024.

During his employment, he was subject to the standard terms and conditions of employment, including EQC's Disciplinary Policy, Attendance Policy, and Code of Conduct. Throughout his employment, Mr. Fitzgerald's conduct and/or performance gave rise to several concerns, as stated below, which were appropriately addressed by EQC.

There were performance and conduct concerns about the complainant. He was subject to repeated informal interventions regarding poor attendance, inappropriate/abusive conduct, insubordination, performance issues and failure to follow procedure. In due course he faced a disciplinary process for a series of breaches.

The following is a summary of the Allegations and Disciplinary Process.

April 24th, 2024.

The complainant was alleged to have refused to follow direct instructions from his line manager, resulting in operational disruption, and that he engaged in unprofessional behaviour including the use of inappropriate language.

He also accumulated several uncertified absences (excluding statutory leave), and this contributed to a breakdown in trust with EQC. These issues triggered a preliminary review of his conduct and capability, and it was noted that the allegations, if substantiated, could constitute gross misconduct under EQC's Disciplinary Policy and Section 6 of the Unfair Dismissals Acts.

On Apr 26th, 2024, an investigation was initiated,followed by a formal disciplinary meeting, led by the HR Manager and a second senior manager uninvolved in the events. The complainant was informed of his right to representation and of the seriousness of the allegations, and this resulted in a written warning.

In May-June 2024, a Performance Improvement Plan (PIP) was implemented.Following the initial disciplinary meeting, the complainant was issued a written warning and placed on a PIP for 8 weeks, which included continuous coaching and guidance from EQC. The objective was to give him a fair opportunity to improve his conduct and work performance, in line with principles of natural justice and good faith. The complainant successfully completed his PIP.

However, new issues arose after the PIP.

In September 2024, there was an incident resulting from the improper securing of a load for delivery which resulted in damage to stock, a formal complaint from the client, and Mr. Fitzgerald being banned from their site.

EQC obtained CCTV evidence, photographs of the delivery as well as a copy of the client complaint,

In the same period, a speeding infringement notice was received for a company vehicle which had been assigned to the complainant on the date of the offence. Upon receipt of the fine by post, his line manager, requested that he accept responsibility and make arrangements for payment.

 The complainant refused to accept the fine, denied liability, and contended that EQC, as the vehicle owner, should bear the cost. This refusal to accept accountability for conduct occurring during his duties, forms part of the cumulative concerns regarding the Complainant's conduct and attitude towards responsibility.

On October 10th, 2024, EQC issued a formal letter to Mr.Fitzgerald requiring him to attend a disciplinary hearing on 14 October 2024 at EQC's Naas offices. The hearing would address the following allegations:

Failure to comply with EQC Health & Safety policy by not securing loads with safety straps.

Departing the yard with knowledge of breaching the company's gross misconduct policy.

Appeared to demonstrate a pattern of refusal to take responsibility (i.e., company vehicle speeding fine).

Failure to report a serious incident resulting in client site ban.

Engaged in unprofessional behaviour including the use of inappropriate language.

He was notified of his right to bring a companion and was provided with all supporting evidence, including the Investigation report, CCTV footage, client email and complaint, delivery photographs and speeding fine documentation and informed that the matter would be reviewed under Disciplinary Policy and that dismissal was a potential outcome.

A disciplinary hearing took place on October 14th, 2024,chaired by Managing Director Marcus Pucci and HR Manager Claudia Chiarelli. Mr. Fitzgerald was given the opportunity to respond to each allegation and present evidence. After careful review, it was determined that the allegations were substantiated and met the threshold of gross misconduct.

Mr. Fitzgerald's failure to comply with health and safety standards, his refusal to take accountability, and the reputational damage to EQC justified dismissal without notice. He was formally dismissed for gross misconduct and issued a formal dismissal letter which outlined the grounds for the decision and his right of appeal.

He got his final pay, including all outstanding entitlements, and requested to return company property by October 25th, 2024.

EQC adhered to each step of its internal disciplinary procedure and afforded the Complainant opportunities to respond to the allegations and acted in accordance with its policies, ensured fair process, and took progressive and proportionate steps prior to reaching the decision to dismiss.

The decision to dismiss Mr. Fitzgerald was both procedurally fair and substantively warranted, based on a sustained pattern of misconduct, performance issues, and non-compliance with health and safety obligations. Despite informal interventions, a written warning, and the implementation of a Performance Improvement Plan, he engaged in further serious breaches of company policy as set put above.

Under the Unfair Dismissals Acts 1977-2015, a dismissal is not unfair where it arises from the conduct of the employee and the employer has followed fair procedures.

EQC acted in accordance with its Disciplinary Policy 2.02, the principles of natural justice, and its obligations under the Safety, Health, and Welfare at Work Act 2005.

The company further relies on the "Band of Reasonable Responses" test as recognised in Noritis v Ryan Cleaning [UD 834/2013], which provides that a dismissal is fair where it falls within the range of responses a reasonable employer might take in similar circumstances.

EQC contends that its decision clearly satisfies this test. The dismissal was based on verifiable grounds, followed a full and fair process, and no lesser sanction was appropriate given the repeated breaches and failure to restore trust. EQC also refers to relevant WRC and Labour Court precedent, including Keegan v O'Neil/'s [UD775/2006], in support of its position that persistent misconduct, abusive behaviour, and a breakdown of trust may lawfully justify summary dismissal.

Evidence of Ms Chiarreli on affirmation.

The witness stated that the complainant’s line manager Mr. Kevin Curtin came to her with a complaint that arose from an incident on September 24th, 2024. There had been an incident involving damaged to goods on arriving to a client.

The complainant was invited to a disciplinary hearing due to take place on October 12th at which his employment was terminated.

There had been an investigation which concluded on October 8th, and the complainant was presented with the findings and told of the outcome. He had agreed that the incident had taken place and that the load had not been securely fastened.

Evidence of Marcus Pucci on affirmation

The witness said that he received a phone call from the client, and this was followed up by an e-mail setting out specifically the damage that was done to the delivery and that the client did not expect that their employees would have to handle damaged goods.

As it happens the client company was desperate for the material, so they retained the delivery, but they made it clear that they did not want the complainant to deliver to them again.

In reaching a decision on the termination of employment they took into account the seriousness of this incident which, apart from the implications for the client in question, could have led to very serious issues for other road users.

In addition, it had potentially very serious reputational issues for the respondent with a company which was a relatively new client.

The complainant gave evidence on affirmation.

In September, he did a delivery of pallets of sheets but, on his way there in a company truck a car had pulled out in front of him forcing him into an emergency stop.

On reaching the delivery site he noticed that his load, the sheets had moved forward on the pallets, but no damage was done. He offered to ring his manager and bring back the delivery, but they said they would contact Mr. Pucci.

They raised no objection at the time and took the delivery and nothing more was heard until he got an email while on his family holiday on October 8th inviting him to a disciplinary meeting the following Monday.

The respondent stated that it was urgent because they only had a certain amount of time to get it done.

In that meeting he was told was told that the client was very critical and had banned him from all their sites.

They said they were outsourcing all their information to give him the fairest outcome. He since made contact with the client in question and was told that they had no personal issues with him. He believed he was being pushed out of his job because a former driver wanted to come back.

The complainant was aggrieved about being contacted about a disciplinary hearing while he was in holidays, and he outlined the severe impact the matter had on his personal life. He wanted the respondent to understand the damage that had been done to him.

In relation to mitigation, he said that he had sent out over seventy CVs but had failed to find new employment.

The sequence of events is set out above and is not in dispute.

There had been a background of disciplinary issues with the complainant in April and May 2024, and a disciplinary hearing was held on May 2nd. This resulted in a formal written warning and the complainant was placed on a Performance Improvement Plan.

The warning had a life of twelve months and so was still active when the second episode occurred.

As described in the witness evidence it was a relatively serious matter that had consequences for road safety, the safety of those working at the client company and for general road users and the respondent undertook an investigation.

Around the same time the incident involving the speeding offence while using the company vehicle occurred. This became a factor in the disciplinary action which  was initiated on October 8th, 2024.

There are three key pillars involved in an assessment of the fairness of a dismissal.

In order for a dismissal to be fair there must be some significant grounds to justify disciplinary proceedings or other actions against the employee related to performance or conduct.

The onus under the Act falls on the employer to justify the dismissal.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee and ensure that justice is done.

These are not particularly onerous and are generally well known.

They are referred to by such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases coming before an Adjudicator are argued on the basis of facts that are generally not in dispute and the outcome normally turns on alleged inadequacies in the procedures and/or the appropriateness of the sanction.

The final pillar concerns the sanction. In this the WRC Adjudicator will apply not a personal view as to the gravity or otherwise of the complainant’s conduct but, in addition to the procedural aspect of the case whether the sanction lies within a range of what night be considered reasonable, having regard to the nature of the respondent’s business activity.

This is referred to above by the respondent as ‘The Band of Reasonable Responses’ test where a number of authorities are cited.

In addition, in Allied Irish Banks v. Purcell [2012] 23 ELR 189, Linnane J commented (at p. 4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

This was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229.   It has also been referred to with approval in the Supreme Court by O’Donnell J in Ruffley v Board of Management of St Anne’s School [2017] 2 IR at paragraph 41.

I find that the respondent had sufficient cause to initiate the disciplinary process following the complaint from the client to whom the delivery was made. The email received from the client company gave rise to grounds for very serious concern, and not solely of a commercial nature, and the respondent could not ignore it on its merits.

The lack of insight displayed by the complainant over the speeding offence is hard to fathom, given that he was already having to face the other issues, but as a result it ended up on the list of ‘charges’ at the disciplinary hearing.

I can find no fault with the process thereafter. The respondent complied with its fair procedure obligations and on the basis of the uncontested facts reached a conclusion on sanction which comfortably falls within the ‘band of reasonable responses, especially having regard to the fact that the complainant was already on a warning.

Accordingly, I find that the dismissal was fair.

For the reasons set out above complaint CA-00067383-001 is not upheld and I decide that the dismissal was not unfair.

Unfair Dismissal