Complainant

Respondent

Parties

Mr Enda Gilligan

GMC Civil & Mechanical Engineering Limited

Representatives

Mr Des Courtney

Branch Organiser

SIPTU

Mr Hugh Hegarty

Industrial Relations

and Employment Services

Construction Industry Federation

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-00062170-001

12/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00062170-002

12/03/2024

This matter came before the Workplace Relations Commission dated 12/03/2024 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977 claiming unfair dismissal and a complaint under section 12 of the Minimum Notice & Terms of Employment Act, 1973.  The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 11/04/2025.

The Complainant at all material times was employed as van driver with the Respondent. The Complainant worked 39 hours per week for which he was paid €896.00 gross weekly.  The Complainant commenced employment with the Respondent on 09/09/1999.   The employment was terminated by reason of dismissal on 10/11/2023. 

The Respondent is a utility and civil engineering company and provides services to the telecommunications sector and also has developed expertise in electricity, water, wastewater installation and maintenance, broadband and water metering. 

The Complainant claims he was unfairly dismissed and that he was denied fair procedures.

The Respondent’s position is that this claim is not well-founded and the Complainant was dismissed on the grounds of gross misconduct following a fair investigation and disciplinary procedure. 

Both parties filed helpful written submissions with supporting documentation in advance of hearing for which I am grateful.   

CA-00062170-001

Overview of written submission

The Complainant submits his dismissal was unfair for the following reasons:

·       No investigation carried out by management;

·       Therefore, he was dismissed based on a fundamentally flawed investigation/disciplinary process which denied his right to fair procedures and natural justice;

·       The conduct of the employer;

·       Management breached the terms of SI 146/2000;

·       The dismissal was disproportionate to any alleged offence;

·       The allegations made against the Complainant were vague and ambiguous;

·       The Complainant was denied the right to cross-examine his accusers. 

The Complainant submits that on 19th April 2023 he received correspondence titled “witness statement ref Enda Gilligan” from company management and signed by the Head of Contract.  The Complainant submits the correspondence contained numerous photographs purporting to be of the Complainant and / or his company vehicle, along with a rationale for an investigation into the Complainant’s work activities on 23/25/26 and 31 January 2023.

Mr Walter Laffey was appointed to carry out an investigation.  However, due to a period of sick leave the Complainant was not in a position to participate in the investigation process.  The Complainant submits that without any meaningful investigation whatsoever, Mr Laffey determined that “there is a breach of the Company’s Disciplinary policy which may constitute gross misconduct.”

The Complainant submits that two disciplinary hearings, chaired by Mr Emmet O’Brien Commercial Manager took place on 1 and 7 November 2023.  The Complainant was dismissed through correspondence dated 10 November 2023.

The Complainant unsuccessfully appealed his dismissal at an appeal hearing chaired by Mr Shane McCloskey MD on 24 November 2023.  The dismissal was upheld. 

Union Case

It is submitted the Head of Contract witness statement contains a number of photographs allegedly taken by an unidentified ‘third party’ all of which contain subjects which are unidentifiable.  For this reason, and to get him to incriminate himself, management engaged in a fishing expedition at the Complainant’s disciplinary hearings. 

Photograph 1 contains an unidentifiable person crossing the forecourt of a Circle K petrol station on 23 January 2023.  Neither the person nor the petrol station is definitively identifiable.  Even if the image was clearly identifiable, as a driver for the Respondent, the Complainant was required to refuel his van.  Also, none of the Respondent employees were precluded from using the facilities shops etc of petrol stations they were required to visit.

Photograph 2 contains an unidentified van travelling in the distance with absolutely no identifiable markings.

Photograph 3 shows a van parked up with no identifiable markings or driver which would identify it as the Complainant’s.

Photograph 4 also shows a van stopped at traffic lights with no identifiable markings whilst no. 5 is simply a photograph of the Complainant’s van with no context or identifiable location.

Photographs 6, 7 and 8 are, again, photographs of a van/s parked up with no identifiable markings of context.

Photographs 9 and 10 are vague and show nothing of substance. 

It is submitted that within the report is reference to an email from a senior member of the Respondent company with reports of a van being driven erratically on the N7 on 23 December with a request that this be brought to the attention of the driver’s line manager for addressing.  It is submitted that one would think that such a serious allegation as this from one so senior in the company would have created an immediate response yet this matter was never raised with the Complainant until he was made aware of the allegation in the Head of Contract report some four months later. 

The Investigation

It is submitted that Mr Laffey was appointed to carry out an investigation and whilst employers need not provide the complement of procedures that is applied in a court of law, where the burden of proof is that beyond a reasonable doubt, they are expected to carry out a thorough investigation. 

As the Employment Appeals Tribunal put it in Murphy v College Freight Ltd UD 867/2007:

“It must be sufficiently thorough as to allow the necessary evidence to be placed before the decision maker.”

In Kiely v Minister for Social Welfare [1977] 1 IR 267, 281 Henchy J set out the following requirements:

"Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings.  Audi alteram partem means that both sides must be fairly heard.  That is not done if one side is allowed to send in his evidence in writing, free from the truth eliciting process of a confrontation which is inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination.  The dispensation of justice, in order to achieve its end, must be even handed in form as well as content.”

It is submitted that both Mr Laffey and Mr O’Brien appear to believe that, in seeking to establish facts, only the Complainant is liable, and that management, and those who represent the Respondent are exempt from the rigours of a thorough investigation.  It is submitted Mr Laffey sought no corroboration of the information provided by the ‘third party’ upon which the Complainant’s dismissal was based. 

It is submitted the contents of the report were taken at face value including the photographs at the disciplinary hearing and that no minutes were taken during the investigation as the documentation spoke for itself which it is submitted is clearly at odds with the requirements set out by Henchy J above. 

It is submitted that on numerous occasions during the disciplinary hearings Mr O’ Brien specifically undertook to carry out further investigation into points raised by the Complainant and his representative and he never did so. 

It is submitted that at least some of the photographs are stills of video footage and at the Disciplinary hearings copies of any such material was requested and none was forthcoming. 

It is submitted that the Respondent takes issue with the Complainant’s alleged refusal to attend investigation meetings.  It is submitted that Management wrote to the Complainant twice on 5 July and again on 12 July 2023 and the HR manager calls upon the Complainant to advise him if ‘for any reason’ he was unable to attend and to do so ‘as soon as possible’.  It is submitted that on each occasion the Complainant did so within twenty-four to forty-eight hours and requested information relevant to the process which has never been forthcoming.

It is submitted the Respondent’s Disciplinary Procedure states as follows:

“The company has a responsibility to investigate thoroughly any lapse in standards or failure to obey rules, before any disciplinary action is contemplated.”

It is submitted the Policy states as follows:

“The decision to dismiss summarily will only be taken after an investigation into the alleged gross misconduct has been carried out.”

It is questioned how the Complainant’s rights in this regard be vindicated in circumstances in which the Respondent dispensed with its own disciplinary procedures? It is submitted that neither Mr Laffey nor Mr O’Brien felt it necessary to carry out any examination of the material upon which they relied to dismiss the Complainant. 

Disproportionate Sanction

It is submitted the question arises as to whether the decision to dismiss was disproportionate to the alleged offence and in Coughlan the Court took into consideration the company’s failure to consider a lesser and more proportionate sanction.  It is submitted at the date of his dismissal the Complainant had over 24 years’ service and it is submitted in such circumstances the Respondent had a duty to give serious consideration to any other sanction short of dismissal which they failed to do.  It is submitted disciplinary procedures should be corrective and not punitive and although the Respondent policy reflects this approach it is submitted it was never considered in this case.

Vague Allegations   

It is submitted that on the following dates 5 July, 12 July, 9 August, 28 September and 26 October,  correspondence from the Respondent set out the allegations against the Complainant in the most ambiguous terms:

“to discuss your alleged performance and conduct as detailed in the report issued in previous correspondence as well as your subsequent bahaviour and refusal to adhere to our absence policy during your period of absence.”

It is submitted that allegations not grounded in specifics creates serious difficulties for those abut whom allegations have been made and it is submitted it is virtually impossible to rebut an allegation of this nature since it is impossible to reference where one may have been on the date(s)/time(s) in question.  It is submitted the Respondent has apparently decided that the Complainant is guilty of falsifying timesheets with no reference to which specific timesheets he is alleged to have falsified or in which way.  It is submitted the first reference to the timesheets is in the investigation report.  It is submitted that all of the timesheets are co-signed by the Complainant’s line manager and despite his availability neither Mr Laffey nor Mr O’Brien sought to interview him during the process to establish which, if any, timesheets were falsified and in which way.

It is submitted very serious allegations were levelled against the Complainant and specific requests by his representative to cross-examine his accusers were refused.  It submitted that this is a breach of the Complainant’s constitutional rights. 

It is submitted the complaints made against the Complainant resulted in his dismissal and impinged on his right to a good name.  It is submitted Lyons is clear in terms of an employee’s rights in this regard and it is questioned how can such a right be vindicated in the absence of any attempt at corroboration, rebuttal or cross-examination?

It is submitted the Employer’s processes were conducted unfairly.  It is submitted the Complainant’s Constitutional rights to fair procedures and natural justice along with those contained within SI 146/2000 were denied throughout the process.  It is submitted the investigation undertaken in relation to the allegations against the Complainant fell far short under the principles of fair procedure and natural justice in the Company’s own Disciplinary Procedure.

Mitigation of loss

The Complainant provided six documents dated as follows:

 05/09/2024 & 01/02/2024 & 15/01/2025 all dates signed by same prospective employer; 

30/09/2024 & 29/02/2024 both dates signed by same prospective employer;

09/02/2024 & 13/08/2024 both dates signed by same prospective employer;

22/08/2024 & 21/02/2024 both dates signed by same prospective employer;

 22/01/2024 & 28/07/2024 both dates signed by same prospective employer; and

17/06/2024 & 11/01/2024 both dates signed by same prospective employer. 

The aforesaid documents all provide the same narrative namely no vacancies.  Upon inquiry the Complainant submits these are all farmers with whom he unsuccessfully sought farm work.  The Complainant submits he commenced work as a driver for 15 hours per week for which he is paid €300 per week and is seeking farm work to supplement that.  The Complainant submits he was unemployed for 3 weeks and he has had no comparable employment for 67 weeks and estimates his loss at €42,000.00 approx.   

Law relied upon by the Complainant

Section 6(7) of the Unfair Dismissals Act, 1977, as amended by the Act of 1993

Section 14(1) of the Unfair Dismissals Act, 1977

Sloneczko Ltd., Trading as Breadski Brothers v Agnieszka Kopacz [UDD 1933]

Frizelle v New Ross Credit Union Ltd [1977] IEHC 137

DHL Express (Ireland) ltd v Michael Coughlan UDD1738

Lennon v Bredin M160/1978

Borges v the Fitness to Practice Committee [2004] IR 103

Maguire v Ardagh [2002] IR 385

In re Haughey [1971] IR 217

Lyons v Longford Westmeath Education and Training Board [2017[ IEHC 272

SI 146/2000

Complainant opening submission

The Complainant representative submits we are talking about a member with a long period of employment here.  It is submitted the Respondent had concerns about turning up for work and investigated the Complainant secretly and relied upon photo documentation obtained without any investigation.  The Complainant representative submits this as an unfair dismissal that breaches all requirements of natural justice and fair procedures.  It is submitted that none of the fair procedures and natural justice from the caselaw, the legislation and SI 146 of 2000 have been delivered in this case. 

Summary of direct evidence of the Complainant on oath

The Complainant is taken through the photos by his representative and he submits he does not recognise any person or any van from the photos he was shown and he cannot recognise himself in them. 

The Complainant’s representative puts it to the Complainant that the Respondent feels that he has let them down to which the Complainant responds that he thinks this is a very unfair portrayal of his character.  The Complainant submits that he worked as a shop-steward for a number of years and he always upheld health and safety and that he is a very safety conscious person and that he was a safety representative on previous contracts.

The Complainant submits that safety is key to how they carry out their work and he has been there for twenty-four years and he has ever been before management before.

The Complainant submits he always acted on a safe ethos and he was on the standby roster for 24/7 out of hours for 52 weeks per year.  The Complainant submits he always turned out for Call Ones even when they weren’t in his area. 

Summary of cross-examination of Complainant

The Complainant is asked what was the registration number of his van to which he replies he cannot recall.  The Respondent representative calls out a registration number from one of the photographs to which the Complainant responds it doesn’t ring a bell and that he can’t recall.  The Complainant submits he cannot identify the van.  The Complainant is asked if he has any reason to think the Respondent would lie to which he replies no. 

The Complainant is asked if he has ever not started work before 10am to which he replies no. 

The Complainant is asked if he can provide a valid reason for why his van would be sitting in the forecourt of a garage from 8.40 to 9.52 to which he replies no. 

The Complainant is asked why he wilfully after receiving a written warning refused to fill out the GoFormz to which he replies he needed more training on them and there was an email saying that.  It is put to the Complainant that there was no such email and if there was why wasn’t it exhibited. 

Summary of closing submission of Complainant

It is submitted fair procedures and natural justice are most important.  It is submitted from this was not a thorough investigation and they should have been allowed to interrogate the third party that compiled the investigation report and took the photos. 

The Complainant representative quotes as follows from Kiely:

"Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings.  Audi alteram partem means that both sides must be fairly heard.  That is not done if one side is allowed to send in his evidence in writing, free from the truth eliciting process of a confrontation which is inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination.  The dispensation of justice, in order to achieve its end, must be even handed in form as well as content.”

It is alleged they brought a third party in to investigate and why didn’t the make these people available.  It is submitted all the evidence has to be tested and looked at and there has been no engagement with the people who took the photos.  It is submitted they took at all at face value.  It is submitted fair procedures and natural justice are very important even where substantial grounds even more so. 

CA-00062170-002

Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant did not receive his statutory period of notice or payment in lieu thereof.

CA-00062170-001

Overview of written submission

It is the Respondent 's position that the claims are not well founded, the Complainant was dismissed on the grounds of Gross Misconduct following a fair and investigation and disciplinary procedure. The Dismissal of the Complainant was reasonable and proportionate in the circumstances, and the Respondent adhered to best practice when effecting the dismissal.

The Respondent is seeking a determination from the Adjudicator that the claims are not well founded; that the Complainant was fairly dismissed on the grounds of gross misconduct and as such was not entitled to notice.

In or around November 2022 it came to the company's attention that the Complainant was potentially not attending sites as per the hours on his time sheets, this issue was initially raised by the Complainant's direct line manager. The issue was addressed by the Head of Contract, at a company union meeting in the presence of the Complainant's union official.

When queried the Complainant assured the company that he always worked his hours. Subsequently and coincidently the Head of Contract saw the Complainant during working hours and the location of the Complainant was curious.  The Head of Contract queried the Complainants work schedule for the day and there were issues in relation to the location of the Complainant and the schedule.

On foot of this a preliminary look was taken at the Complainant's timekeeping by the Head of Contract and a number of anomalies were identified.  On foot of this the Company made the decision to hire an independent third party to investigate the Complainants timekeeping.  According to the report that was compiled the independent third party monitored the Complainants start and finish times on 23, 25, 26 and 31 of January 2023.  

The Respondent submits a report was compiled and given to the Head of Contracts who in turn issued a statement to the Human Resources Department which prompted an investigation in line with the procedure outlined in the company handbook.

On the 20 April 2023 the Complainant was invited to an investigation however the Complainant was certified for sick leave. Throughout the next few months, the company kept in touch with the Complainant, in relation to his sick leave and the pending investigation.  Correspondence continued through the first months of 2023, and during this time the Complainant was referred to occupational health on numerous occasions with the Complainant rescheduling and claiming he could not attend.

Eventually the investigation meeting was scheduled for 12 July 2023. In response to the request for the meeting Complainant sought a number of documents, the Investigation was postponed and the documents supplied.  The investigation meeting was then rescheduled for 17 July 2023. The Complainant wrote to the company on the 13 July, stating that he could not attend the investigation until he had received the information. The investigation meeting was rescheduled again for the 19July 2023.

On the 18 July the Complainant wrote to the company claiming that his representative was unavailable. The Complainant then had the meeting rescheduled for the fourth time, for the 3rd August 2023.  Again, the meeting was rescheduled for the 3rd August, and on this occasion the Complainant did not attend, and did not contact the company to inform them, either before or after to give them a reason as to why he could not attend.

On or about 9 August 2023 the Complainant was advised that the investigation stage of the process is now closed, and the process is moving on to a disciplinary hearing.  The disciplinary hearing was scheduled for 15 August 2023.  However, the Complainant was certified unfit for work on 08 August 2023. The Complainant remained on sick leave for the next few months.  Correspondence continued between the parties in relation to the illness and the disciplinary process and the hearing was scheduled for 01 November 2023.  An additional disciplinary hearing was scheduled and held on the 07 November 2023. At both hearings the Complainant was represented by Mr Des Courtney of SIPTU and conducted by Mr Emmet O'Brien who was accompanied by a note taker.

Following the two hearings Mr O'Brien issued his decision on 10 November 2023. The outcome of the process was that the Complainants' actions amounted to gross misconduct and the Complainant employment was being terminated with immediate effect.

The Complainant appealed this decision, and the appeal hearing was held on 27 November 2023 with Managing Director of the Respondent  Mr Shane McCloskey and Mr Keatinge HR and the Complainant was represented by Mr Des Courtney.  The outcome of the appeal was issued to the Complainant on the 1st December considered all the representations made by the Complainant and concluded that the sanction of dismissal was appropriate in the circumstances. 

The matter was then referred to the WRC on or about the 12 March 2024. 

Legal Position:

Substantive Grounds

The Complainant was dismissed on the ground of Gross Misconduct following an investigation and disciplinary process, for misconduct on a number of dates in December 2022 and January 2023. The outcome of the disciplinary process was the fact that the Complainant could not give any reasonable explanation for not being where the Complainant said he was on his time sheets, for falsifying those time sheets in order to deceive the company, to cover up the fact that he was not completing his duties, and failing to improve in relation to a written warning issued to him for failing to update "GoFormz" app in the intervening 11 weeks.  "GoFormz" is the software the company uses to track work done by staff to assist in invoicing and work completion. 

During the course of the investigation and disciplinary process the Complainant admitted to the allegations made against him specifically the Complainant admitted that he did not submit the "GoFormz" documents and that on the 23rd December the Complainant knowingly and intentionally signed a false time sheet indicating that he was on site and working when he was not.

The Employee handbook issued to the complainant at the time he commenced employment with the Respondent clearly outlines that conduct that may constitute gross misconduct includes "Falsifying a Time Sheet" at page 77 . It is clear that the Complainant was aware of his actions, the potential consequences of his actions and still intentionally falsified the time sheets.

Additionally, the Complainant was previously issued a warning for his refusal to use the "GoFormz" system and was well aware of the possibility of further disciplinary action being taken by the Respondent.  It is our submission that that the actions of the Complainant warranted dismissal and constituted misconduct for the purposes of the Unfair dismissals Act. 

Procedural Fairness

In relation to the dismissal the Respondent conducted an investigation, and disciplinary procedure, included the appeal and afforded the Complainant all the principles as outlined in the Code of Practice on Grievance and Disciplinary Procedures.

It is admitted that the Respondent did not hold the investigation hearing following the repeated rescheduling and nonattendance by the Complainant.  However, it must also be noted that the Complainant was provided with all details of any allegations, he was given the opportunity to respond fully to the allegations, was afforded the right to be represented during the procedure and finally had a fair and impartial determination of the issues concerned, taking into account any representations made.

At all times the company acted reasonably, in relation to the Complainant, they informed his of the allegations and made multiple attempts at schedule an investigation meeting, and when eventually the Complainant did not attend, without reason or excuse the employer moved the matter to a disciplinary hearing.

It is our submission that the Respondent did act reasonably. The Respondent could be expected to postpone the investigation indefinitely.  Additionally, the Complainant was, at the disciplinary hearing given the opportunity to respond fully to any and all allegations of conduct or misconduct as the case may be.  The Complainant was represented, and all aspects of fair procedures were afforded to the Complainant at that stage.

We submit that the Complainant was treated fairly and reasonably throughout the process, the disciplinary hearing and appeal. The Respondent afforded the Complainant every principle as outlined in the Code of Practice and fairly and reasonably issued a decision that is proportionate in the circumstances.

Mitigation of loss

It is a well-established principle of Employment Law that a Complainant must be able to demonstrate that upon their termination, they made every effort to mitigate their loss.

In Sheehan v Continental  Administration Co Ltd (UD 858/1999) which held that:

"a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss".

The Labour Court has consistently reenforced this principle in Cityjet v Gil (UDD215), the employee failed to provide evidence to support  their losses, and the court specifically referenced the inaction of the employee to mitigate their loss and reduced the award of compensation to just under €1,800.

A further recent example which stresses the importance of mitigating financial loss in an unfair dismissal case is N Smith & Sons Ltd t/a Ford Smiths of Drogheda v Ragelis (UDD2332). In this case, despite applying for "seventeen jobs" and speaking "by telephone with six contacts in an eight-month period", the Labour Court considered the efforts exercised by the employee fell "very far short of the obligation placed by the Act". While the Labour Court found that the employee had been unfairly dismissed, the Labour Court held that no compensation was payable in this instance thereby varying the €2,000 compensation originally awarded to zero.  The Respondent submits that the Complainant has not to date provided any evidence of his attempts to mitigate his loss and that he does indicate on the WRC complaint form that he has been successful in securing work.  The Respondent submits that in the current employment climate it is difficult to believe the Complainant was unemployed for a period of six weeks. 

Law relied upon by Respondent

Section 7(1) (c) of the Unfair Dismissals Act, 1977

Section 7(3) of the Unfair Dismissals Act, 1977

Sheehan v Continental Administration Co Ltd (UD 858/1999)

N Smith & Sons Ltd t/a Ford Smiths of Drogheda v Ragelis (UDD2332)

Cityjet v Gil (UDD215)

Respondent opening submission

The Respondent representative submits the UD legislation requires two aspects a substantive reason for dismissal and fair procedures.  It is submitted the Complainant wilfully refused to do his job for which he had a previous written warning and he wilfully neglected his duties.  It is submitted evidence was gathered and there was an internal investigation and 4 meetings were scheduled.  It is submitted the Complainant was afforded every opportunity to respond at the investigation stage in the spirit of S1 146 of 2000.  It is submitted the Respondent acted fairly at all times.  It is submitted the Complainant was given the opportunity to respond.  It is submitted the decision maker considered the proportionality of the sanction and the Complainant was dismissed for not doing the job for which he was paid.  It is submitted the process was fair and following and falsifying time sheets is considered to be gross misconduct.

Summary of Respondent witness Mr Walter Laffey (hereafter WL) on oath

WL outlines that he is the Operations Manager on the distribution side and he has been with the Respondent company for 15/16 years.  The witness submits he was appointed by the HR manager to investigate.  The witness submits he was provided with 19 time sheets and the report into the investigation conducted by an independent third party.  The witness submits he made two attempts to meet with the Complainant in July and in August.  The witness submits the Complainant was provided with 7 days’ notice of the investigation meeting. Having regard to the meeting scheduled in July the Complainant contacted him at short notice to say there was no representative available and regarding the August meeting it was noted that his rep was in the Respondent building that day but no reason was forthcoming from the Complainant as to why he did not attend. 

The witness submits he reviewed the evidence available namely the time sheets; the investigation report from the independent third party and the evidence of the Complainant’s failure to attend at occupational health despite appointments having been scheduled for him. 

The witness submits he made the decision to move the investigation forward as they were now at the stage of a fourth meeting having been scheduled to accommodate the Complainant that he hadn’t attended. 

Summary of cross-examination of WL

The witness is directed to an email sent to the Respondent on 10th July 2023 requesting a number of items that the Complainant sought for information and stating that when he had received the information he would contact the Respondent to arrange his attendance at an investigation. 

The witness confirms he has been involved at management level over a period of years and this would not have been the first investigation he had undertaken.  The witness submits he understands the requirements of the disciplinary policy.  The witness is asked for his interpretation of a “thorough” investigation to which he responds an extensive investigation involving a review of all the evidence including the time sheets and the independent report. 

The witness is asked if he knows the third party who took the photographs and if he had verified that this is in fact the Complainant to which the witness responds yes he recognises him in the photo.  The witness is asked why would a van driver be in a Circle K to which he replies to refuel or for lunch.  It is put to the witness that he could have been a legitimate exercise for him to be there which elicits the response that it was not in his area that day. 

The witness is directed to photo number 2 and is asked why this was accepted as evidence to which the witness replied it is a long wheel base van with certain logo of the type driven by the Complainant and he relied upon it as evidence as part of the overall.  Having regard to the photo of the van parked at Lidl the witness submits the fleet number is visible in the photo and identifies as that belonging to the van the Complainant was driving.  The witness is asked what the photo of the farmyard corroborates to which the witness responds it shows the Complainant was outside of his area of work during his working hours.

The witness is directed towards the time sheets alleged to have been falsified but the Complainant representative submits they have been co-signed by [redacted].

Summary of re-direct WL

The Witness submits there was never any reason to suspect that the third party independent report was not genuine.  It is submitted there was never anything from the Complainant to say that it was not him or his van. 

Summary of direct evidence of Respondent witness Mr Emmet  O’Brien (hereafter E O’B) on oath

E O’B submits he is the Commercial Manager in Gas Contracts and he would not have had any dealings with the Complainant prior to this in any way.  The witness submits he was appointed by the HR Manager.  The witness submits he received the 19 time sheets; the photographs; details of the investigation meetings; and details about the various occupational health referrals and appointments which were not availed of by the Complainant despite requests by registered post from the Respondent. 

The witness submits the disciplinary meetings were difficult and the Complainant was provided with plenty of opportunity to respond but answers were vague and that at no stage did he (the Complainant) say it wasn’t him.  The witness submits a second meeting was convened because they did not get through everything at the first meeting

The witness submits after the two meetings he reviewed the minutes and all the evidence given and he had to decide what the outcome would be.  The witness submits there was a refusal to engage in the investigation apart from an admission that he falsified the time sheets.  The witness makes reference also to the behaviour of the Complainant following the written warning on the matter of the GoFormz.  The witness submits these are the final Health & Safety check on the sites and the obligation to comply with the completion of these checks arises out of a Labour Court Recommendation.  The witness submits he did look at other options regarding sanction but that what clinched it for him was the falsifying of the time sheets; the lack of trust and the ignoring of the GoFormz which is key to the business from a Health & Safety aspect and the ignoring of this could have a detrimental impact on the business in so many ways.  The witness submits the lack of trust was key. 

Summary of cross-examination of Respondent witness E O’B

The witness is asked by the Complainant representative to point to the notes where it says the Complainant accepts he falsified the time sheets which involves a discussion as to why if there were falsified they were signed off in the first instance.  The Complainant’s representative submits there were concerns on their side about the “thoroughness” of the investigation and why was the person taking the photos not present at hearing and why weren’t they presented by the Respondent at the disciplinary meetings to which the witness responds that it was a reputable investigation company that put the report together and they had no skin in the game.  It is put to the witness that it was management that took the photos and it was management that conducted the investigation to which the witness responds he was positive it was the Complainant in the photograph and that this was not denied by the Complainant at the time.  The witness submits the report was completed by a reputable company and the Complainant was provided with plenty of opportunity to respond. 

Summary of direct evidence of Respondent witness Mr Shane McCloskey (hereafter S McC) on oath

S McC outlines that he is the managing director of the Respondent company and he was asked to hear the appeal on the sanction.  The witness submits he considered the grounds of appeal namely the severity of the sanction; the mitigating factors; and that the Complainant was not happy with the process.  The witness confirms he considered all three and he wanted to ensure that the disciplinary process was carried out in a fair and reasonable manner.  The witness submits he reviewed the notes and the outcome letter.  The witness submits he hoped there might be some mitigation brought to the appeal that he could consider and that he entered the appeal with an open mind. 

The witness submits the Complainant representative did most of the talking and it was all about the severity of the sanction and there was no new evidence or no new information offered.  The witness submits it was about the severity of the sanction and whether the Complainant’s actions constituted gross misconduct.  The witness submits it was never denied falsification of the time sheets did not occur and this was fraudulently obtaining money from the company.  The witness refers to the GoFormz incidents and he hoped the Complainant would give a valid reason for that but there was none.  The witness submits the appeal was short and sweet and no new evidence was brought.  It was focused on the severity of the sanction and if the threshold of gross misconduct had been reached.  The witness is asked if he had considered a different sanction.  The witness submits they have to be able to protect themselves from public liability and they found themselves in a situation where they were not able to confirm where the Complainant was at times.  The witness submits there was complete breakdown in trust and the Complainant was putting the company at risk.

The witness submits the Complainant made the comment at the very end that if he could get another chance it wouldn’t happen again but that he had consistently refused to carry out really important tasks. 

Cross-examination of S McC

The witness submits there was no remorse at all shown during the appeal and that there had ample opportunity during disciplinary hearing but it was the same then in response to question on the severity of the sanction.

CA-00062170-002

It is submitted on behalf of the Respondent that the Complainant is not entitled to notice, having been dismissed for gross misconduct. The Respondent relies on Section 8 of the Minimum Notice and Terms of Employment Act 1973, in that regard.

CA-00062170-001

It falls to me to consider whether the dismissal was both substantively and procedurally fair.

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.   I have carefully considered the caselaw to which I have been directed by the parties.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Having carefully considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded in the final stages of the employment relationship in the within case.   The timeline of the relevant events is not in dispute albeit each party sought to interpret events in accordance with their respective positions.  

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.   

The Relevant Law

Unfair dismissal.

6.—(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) 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

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(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 other 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 it is not the role or the function of an 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 against which the Respondent’s actions must be judged.  The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair.  As part of discharging this burden of proof, the Respondent must show that fair process and procedures were applied throughout. 

The approach to 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 he held as follows: 

 “…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 - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild 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.”

A right to fair procedures and natural justice is implied into contracts of employment.  These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment.  The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process. 

It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made.  While these rights may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters.  Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer.  In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures.  In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first Respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. 

I note the Respondent’s position that the Complainant was dismissed on the grounds of gross misconduct following a fair investigation and disciplinary procedure.  I note the Complainant’s position that his dismissal was unfair and in breach of his rights to fair procedures and natural justice.

The Relevant Facts

I note matters pertaining to the Complainant’s time keeping and site attendance were raised initially with the Complainant as far back as November 2022 and assurances were provided by the Complainant that he always worked his contractual hours.  I note the Respondent submits there was a third party hired to carry out a detailed analysis of the Complainant’s timekeeping and the accuracy of the information he was providing regarding same on his timesheets.  I note a report was compiled by the Head of Contract requesting an investigation into what he suspected was the falsification of time sheets in situations where the Complainant was allegedly observed in locations away from his place of work. 

The Investigation

It is not disputed the Complainant commenced a period of sick leave on 21 April 2023 following the report referenced above issuing to him on 20 April in respect of which an investigation was due to take place.  It is not disputed all attempts made by the Respondent to refer the Complainant to the company doctor proved futile with the Complainant refusing to accept registered letters detailing appointments and refusing to respond to emails detailing same as set out in correspondence of 25 May 2023.  I note the Complainant did agree to attend the company doctor on Friday 30 June following which he was certified fit to return to work and confirming that he was fit to participate in an investigation process.  I note the Complainant was suspended on full pay in order to facilitate the investigation effective from 5 July 2023.

I note an investigation meeting was scheduled for 12 July 2023 at which the Complainant advised he would not attend.   I note the Complainant’s request for documents on 10 July and 13 July including the company policy document on the tracking and monitoring of employees by third parties and seeking confirmation that his start and finish times were monitored by a third party on 23,25,26 and 31 January 2023, which the Complainant sought, advising that once he was in receipt of the information he was seeking he would be in contact to arrange his attendance at an investigation meeting.    

I note a second meeting was scheduled for 19 July at which the Complainant advised that he would not attend.  I note a third meeting was scheduled for 26 July at which the Complainant advised he would not attend as his representative was not available.  I note a fourth meeting was arranged for 03 August at which the Complainant did not attend but made contact at lunchtime on the day to say he was not available to attend with no excuse given.

I note the investigation was concluded in the absence of the Complainant taking into account the report submitted by the Head of Contract, the 19 timesheets, the letter of suspension and the relevant documentation relating to the Complainant’s absence specifically related to the requests to attend the company doctor.  I note the Respondent advised the Complainant by correspondence on 09 August that the company would not be arranging a further investigation hearing and the process will now move to a disciplinary hearing scheduled for 15 August 2023. 

There followed a further period of sick leave and I note it was 01 November when the first disciplinary hearing took place.

Band of reasonable responses

An employer’s decision to dismiss an employee on grounds of conduct is one to be assessed within the ‘band of reasonable responses’ open to an employer. The well-established principle is that once the fact of misconduct has been established on a balance of probabilities, the employer need only show that the decision to dismiss fell within the band of reasonable responses. What is in dispute in this case is whether there was any misconduct by the complainant. The respondent is firmly of the view that there was misconduct. Equally, the complainant is firmly of the view that there was no misconduct on his part.

Substantive Fairness

On the substantive issue of gross misconduct, it is my view that this was a reasonable conclusion for the Respondent to reach in respect the Complainant’s failure to update the GoFormz system for which he had been on a first written warning since 8 February 2023.  I find it inexplicable that the Complainant would continue to refuse to undertake a task that was key to the business from a health and safety perspective and I find it difficult to reconcile this refusal with the Complainant’s assertion in direct evidence that safety is key to how they carry out their work and that he always acted on a safe ethos. 

If this failure by the Complainant to comply with the GoFormz system was the sole subject of the disciplinary procedure I would find that dismissal was a disproportionate sanction in terms of the escalation from first written warning to dismissal and I would have considered that a final written warning was a proportionate and appropriate sanction.  However, this failure to comply on the part of the Complainant was not the sole subject of the disciplinary procedure. 

I note the Respondent employee handbook provides as follows under Absence from Work:

“At all times the Company reserves the right to refer you, at its own expense, to a company nominated medical practitioner for an independent medical assessment.” 

I find the Complainant’s avoidance and refusal to attend the company doctor difficult to understand and there was no evidence that might explain this adduced at hearing. 

On the substantive issue of gross misconduct it is reasonable for the Respondent to conclude that the Complainant’s lack of communication in the form of his unanswered emails and returned registered letters together with his blanket refusal to attend the company doctor in line with company policy and his refusal to engage at all with the investigation, taken cumulatively, would constitute conduct liable to cause a breakdown in the necessary trust between any employee and the company as set out in the Disciplinary policy. 

On the substantive issue of gross misconduct it is my view that the falsifying of a timesheet on the occasions which were documented is an act that is clearly set out as an example of gross misconduct in the policy and there was no persuasive argument put forward that would refute this allegation apart from that the Complainant’s line manager had signed off on all his time sheets. 

Trust and confidence are essential in all working relationships. There is an implied term in every contract of employment that requires both employers and employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence. As a consequence of the Complainant’s action, or inaction, the Respondent had every entitlement to lose confidence and trust in him. I am of the view that any employer faced with the same circumstances to those that pertained in this case would have acted in the same way.  I, therefore, find that the conclusion reached by the Respondent in relation to the conduct of the Complainant was reasonable in all of these circumstances.

I also conclude that termination of the complainant’s employment was within the range of sanctions a reasonable employer might apply having regard to its policies, the evidence, and the facts of the case. 

For the reasons set out above, I find the dismissal was substantively fair. 

Procedural Fairness

I also must consider whether the dismissal was procedurally fair.

In considering the question of fair procedures, I note that the High Court in its determination in the case of Shortt v Royal Liver Assurance Ltd(2008) IEHC 332 Laffoy J outlined that a centralconsideration to a fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result”. 

I note also the determination of the Employment Appeals Tribunal in the case of Murphy v College Freight Ltd (UD867/2007) where the EAT noted that a disciplinary procedure does not need to be “a counsel of perfection” but rather “they must be fair.” [emphasis added] 

The Disciplinary Hearing

It is well-established, aside from the substantive cause of dismissal, the fairness of a decision to dismiss an employee stands or falls on the reasonable behaviour of the employer during the disciplinary process.  In the same way, an employee is expected to act reasonably during an investigation and to provide truthful explanations regarding the issues being investigated.

The Complainant in the within case did not engage with the investigation process on any level whatsoever.    

I am satisfied that by the time it got to the disciplinary phase the Complainant did engage but most of the talking was done by his representative at the first disciplinary hearing and at the second disciplinary hearing the Complainant did engage but more to the extent that he could not recall in many instances and a review of the minutes indicates that when answers were provided by the Complainant they were evasive answers in particular with regard to accounting for his time and there was obfuscation and prevarication in terms of responses to questions.     

Notwithstanding, I am not satisfied the disciplinary procedure was conducted in a fair manner. 

Much was made by the Complainant representative of the fact the investigation was undertaken without the attendance of the Complainant despite best efforts having been made to ensure his attendance.  That is not where I find I have an issue.  For completeness, it should be noted that an investigation is generally no more than fact finding and the collection of evidence and that is not to diminish in any way the importance of conducting a fair investigation. 

I am satisfied the investigation process in the within case was frustrated by the failure of the Complainant to attend on four occasions and it was reasonable for the Respondent to conclude the investigation bearing in mind the passage of time.     

Notwithstanding, there may be circumstances in which an investigation is so flawed that it will contaminate the entire process, but an opportunity to correct alleged flaws in an investigation will generally arise at the disciplinary stage where a person may contest the evidence gathered in the course of the investigation.  In the instant case the Complainant chose not to attend the investigation.  However, there were two opportunities provided to contest the evidence at the two disciplinary hearings and he should have been afforded the opportunity to contest all the evidence.    

The allegations against the Complainant were set out in writing in a document titled Witness Statement ref Enda Gilligan which contained some narrative and a number of photographs.  This document/report was the evidential genesis that triggered the investigation in the first instance. 

The Complainant was not afforded an opportunity to directly challenge the report and in particular to challenge the photographs in regard to context.  I am satisfied this placed the Complainant at a disadvantage in terms of fair procedures and limited his ability to challenge the evidence against him.  I have carefully reviewed the minutes of the disciplinary meetings and I note the first question raised by the Complainant’s representative at the first of the disciplinary meetings was in regard to the photos taken by a third party and a question as to whether or not that third party was in attendance at the meeting.  I note the Mr O’Brien responded in the negative and said that he would “take that into consideration”. 

I am of the view the Respondent should have agreed to the request that the third party who took the photographs and compiled the report should have been required to attend the disciplinary hearing.  I am of the view it is a fundamental weakness in the Respondent’s approach not to formally interview the third party who took the photographs for the following reasons.  It is apparent the provenance and the authenticity of the photographs was in dispute from the outset.  I note these photographs made a significant contribution to the Respondent’s conclusion that the Complainant was not where he was meant to be on certain dates and times and that, as a result, there was falsifying of timesheets. 

I note the Complainant at hearing gave evidence that he did not recognise either himself or his van in any of the photographs he had seen.  I note the Complainant at hearing could not remember the registration number of his van. 

These inconsistencies in the versions of events before me in the within case could have been clarified by the evidence of the third party engaged by the Respondent to take the photographs.  It would have provided the Complainant the opportunity to cross-examine the evidence on which the Respondent relied heavily and it would have provided the context and more precise locations in which said photographs were taken to the potential mutual benefit of both parties and it may have dispelled the authenticity and provenance doubts. 

Furthermore, where the disciplinary hearer does not conduct a fair and independent assessment of the entire case presented at that stage, including any challenge to material in the investigation, this may imperil a fair hearing. 

I have carefully reviewed the photographs and I question the quality of some of them and accordingly that leads me to question the probative value.    Notwithstanding, there is one in which the registration number of a van is clearly decipherable and identifiable albeit upon inquiry the Complainant was unable to identify it as he could not recall the registration number.  The remaining photos required context and that can only be provided by the third party tasked with taking them.   I am satisfied the Complainant was not offered the opportunity to directly challenge this evidence and I find this placed the Complainant at a disadvantage in terms of fair procedures and it limited his ability to challenge the evidence against him.

In a case where an employer believes that an employee may be guilty of gross misconduct they must exercise the utmost case to ensure that they follow the correct procedure by collating all the evidence, reviewing documentation, speaking with the employee concerned and speaking to potential witnesses.  Overall, an employer is required to undertake a reasonable investigation into the alleged misconduct.

I am mindful of the case of Dunne v HarringtonUD166/1979 where the EAT provided guidance in relation to the approach that should be applied by an employer when conducting an investigation into a case of dishonesty which may lead to dismissal.  The EAT held that:

“(a) personally in a fair and reasonable manner, i.e. as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence” or he may:

(b) rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (i.e. the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.” [emphasis added]

For the reasons set out above, I am not satisfied that the Respondent’s procedure was fair and in compliance with the principles of natural justice.  For the avoidance of doubt, I accept the Respondent was entitled to progress the matter against the backdrop of the Complainant’s unwillingness to engage in the investigation process but the disciplinary hearing/s should have been undertaken in a manner that did not need to be perfect but they did need to be fair and I am not satisfied that they were. 

The Appeal

I note the Complainant was provided with the right to appeal and he exercised such right on the following grounds:

“I am not guilty of the allegations against me;

I believe the procedures used to dismiss me were fundamentally flawed;

I was not presented with all the purported evidence the company used to dismiss me; and

I reserve the right to present any further grounds I fell are relevant at the appeal hearing.”

I note the Complainant did not speak at the appeal apart from at the end where the Complainant (according to the minutes) said that if the person hearing the appeal looked favourably on the appeal he has never been in trouble in 24 years on the job and if there are agreed changes he (the Complainant) would agree to anything. 

The Complainant’s appeal was not upheld. 

Having taken all matters into account I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts.  Accordingly, I find this complaint to be well-founded.  

Redress

The matter of reinstatement or reengagement was not canvassed at hearing.  In all the circumstances I am satisfied that compensation is the correct form of redress.

In awarding compensation, I am obliged to award a “just and equitable” amount of compensation in the full circumstances of the case. 

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(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, 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,

(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,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, 

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee, 

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

The Respondent submitted that the complainant failed to meet the standard of effort required to mitigate his losses.

While the Complainant presented some evidence of his efforts to find work I note for the most part this was limited to farm work.  From the documents provided at hearing I note the Complainant make 13 attempts to secure farm work between 11/01/2024 and 15/01/2025.  That is an average of one attempt per month.    

I have no evidence before me of any attempts on the Complainant’s part to seek full time employment as a van driver during all this time and I note he commenced in his current role in January 2024 in which he works 15 hours and is paid €300 per week.  I have to conclude the complainant made a decision not to apply for full time positions for which he was qualified while concentrating on looking for farm work.  I note there is no shortage of employment in the current market for van drivers.  The Respondent in these circumstances cannot be held to be wholly responsible by way of compensation and I have taken this into account.  On the basis of the evidence presented I find the Complainant has failed to produce credible evidence to me that he has made sufficiently rigorous efforts attempts to mitigate his loss when I apply that which is set out hereunder. 

The test for a Complainant to mitigate their loss is set out in the decision of the Labour Court in Smith v Leddy UDD1974. In this case, the Labour Court determined that

“the court expects to see that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”

and held that if this test is not met, then this had to be reflected in the compensation awarded to a complainant. 

The decision of Coad v Eurobase [UD1138/2013] outlines the duty to mitigate loss under the Act where the Tribunal noted:

“In calculating the level of compensation, the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. “It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

Contribution to dismissal

It is well established that an Adjudicator may consider the contribution by a complainant to the dismissal and in the circumstances of this case there is a requirement that I do so. 

In considering redress I am bound also to have regard to the Complainant’s contribution to his dismissal. I find that the Complainant contributed substantially to his own dismissal for the following reasons.  I am satisfied the Complainant’s blatant disregard for the absence from work policy over a period of six weeks in May/June 2023 while the Respondent requested him to attend the company doctor on six occasions is unreasonable by any standards and this was followed by refusals to attend again later in the year in October.  I note the company employee handbook provides that “any conduct liable to cause a breakdown in the necessary trust between any employee and the company” is considered gross misconduct.  I am of the view the Complainant’s refusal to engage in the investigation process at all together with his failure to participate meaningfully during the disciplinary meetings when he was given plenty of opportunity to address the alleged discrepancies in his timesheets but failed to do so contributed to his dismissal. 

The alleged discrepancies were not adequately explained to any reasonable degree nor was his failure to comply with the GoFormz procedure with which he must have been familiar and the rationale and reasons thereto as by his own admission he had been a shop steward for a number of years and this procedure arose out of a collective agreement under the auspices of the Labour Court. 

I therefore find that the Complainant contributed substantially to his own dismissal. 

Having regard to the totality of the evidence presented, in particular the evidence regarding mitigation and the finding in respect of the Complainant’s contribution to his dismissal, I award redress of €3,584.00 as just and equitable compensation for the unfair dismissal.  As this is compensation for loss of remuneration arising from the Complainant’s unfair dismissal it is subject to taxation in the normal way. 

CA-00062170-002

This is a complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973. 

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

 “(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be  

(a) – (d) not relevant

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Having found that the Complainant was unfairly dismissed for gross misconduct, I find that the complaint was is well-founded under the Act.

I find that as the Complainant was unfairly dismissed, he is also entitled to statutory notice pay, in the amount of €7,168.00 which represents eight weeks’ wages, and I therefore direct the Respondent to pay the Complainant €7,168.00 subject to all lawful deductions in accordance with section 4 (1) (e) of the Act. 

CA-00062170-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

For the reasons stated above I decide that this complaint is well-founded.  I award redress of €3,584.00 as just and equitable compensation for the unfair dismissal.  As this is compensation for loss of remuneration arising from the Complainant’s unfair dismissal it is subject to taxation in the normal way. 

CA-00062170-002 complaint pursuant to section 12 of the Minimum Notice & Terms of Employment Act, 1973

I decide this complaint is well-founded.  Therefore, I direct the Respondent to pay the Complainant €7,168.00 subject to all lawful deductions in accordance with section 4 (1) (e) of the Act. 

Substantive fairness; procedural unfairness; mitigation; contribution;