Complainant

Respondent

Parties

David  Donohue

Sjk Civils Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Frank Taaffe Francis B Taafe & Co Solicitor's

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00063781-001

28/05/2024

The Respondent is involved in the construction sector. The Complainant commenced employment with the Respondent on 26/6/2011.

An exchange took place on the workplace site between the Complainant and the Respondent arising from which the Complainant considered he had been summarily dismissed. There was discussion and dispute as to whether this occurred on Friday 5 or 12 April 2024. From the evidence I am persuaded that in all likelihood this exchange took place on 5 April 2024 and this decision is based accordingly.

The Respondent denied the Complainant was dismissed on 5/4/2024 but accepted his employment was subsequently terminated effective from 19/4/2024. The Complainant submits he was unfairly dismissed which is disputed and denied by the Respondent.

The Respondent outlined the nature of his business as a reasonably small construction company. The Respondent stated that generally disagreements or disputes were dealt with verbally and informally. The Respondent stated that on Friday 5 April 2024, the Complainant commenced work at 5:30am as he was required to collect materials in Dublin at 7am and return to the construction site. After he returned, the Respondent asked the Complainant to work on at the site which the Complainant refused to do and answered “No”. The Respondent stated that words were exchanged at that point and that the Respondent told the Complainant to leave the materials and go – “Get out of here”. 

The Respondent stated that he received no contact from the Complainant during the following week and that the Complainant did not present for work after 5 April 2024. The Respondent stated that the lack of contact from the Complainant would not have been unusual given the pattern of their  relations/interactions over the years. The Respondent stated that the first he heard from the Complainant was a text message on 15 April 2024 which stated:

“I need a letter to say I was sacked or what ever for to sign on. I was up there this morning…I’ll collect it off you tomorrow”

The Respondent stated that after he received this text message he endeavoured to meet with the Complainant. The Respondent referred to its email to the Complainant of 15 April 2024 requesting him to attend a capability hearing on 17 April 2024. The email advised the Complainant that the meeting could be rescheduled if the time or date did not suit. The Respondent also referred to text messages with the Complainant on 16 April 2024 in relation to arranging the meeting. In that regard the Complainant had texted that he could not make the meeting proposed for 17 April 2024 and that he could not make any meeting that week. The Respondent referred to its text to the Complainant of 16 April 2024 requesting the Complainant to “please come back to me with a date and time for next week by close of business tomorrow”.  

The Respondent referred to its letter to the Complainant of 15 April 2024 which advised that he was being “required to attend a formal capability hearing on Wednesday 17/4/2024” and which stated the purpose of the meeting was to afford the Complainant the opportunity to respond to an allegation of gross misconduct – ie “failure to follow a reasonable management instruction”. The letter stated that the Complainant was being furnished with the Respondent’s procedures and advised the Complainant of his right to representation. The letter of 15 April 2024 concluded as follows:

“Please be aware that non-attendance without good reason may be considered as failure to follow a reasonable management instruction which may be added to the above allegations. If you are dissatisfied with any action taken by [Respondent] as a result of the process, you will have a right of appeal which will be explained to you in the letter confirming the outcome of the process…..”

The Respondent stated that the Complainant failed to attend the capability hearing on 17 April 2024. The Respondent referred to its email to the Complainant of 22 April 2024 which attached letter of 19 April 2024 titled “Termination of Employment”. This letter advised the Complainant that due to his failure to attend or make effort to schedule a capability hearing within the allocated time that his contract of employment had been terminated, that his non-attendance and failure to schedule a meeting without good reason was considered a failure to follow a reasonable management instruction and that his termination was as a result of gross misconduct in relation to the incident of Friday, 5 April 2024. The termination letter of 19 April 2024 also referred “to previous formal verbal warnings” on a number of specified dates. The letter advised the Complainant of his right “to appeal this warning”.

The Respondent was cross examined on his evidence. Under cross examination the Respondent stated that the first contact he received from the Complainant after 5 April 2024 was his text of 15 April 2024 which he/the Respondent took as a reference to the Complainant having been in the Social Welfare Office. In response to a question as to why he had not telephoned the Complainant, the Respondent stated that both parties were “stubborn” and that he wished to meet formally. In response to questions about the Respondent’s disciplinary procedure and references to a capability meeting, the Respondent confirmed it did not conduct an investigation and there had been no previous capability meeting/hearing held with the Complainant. It was put to the Respondent that the letter to the Complainant of 19 April 2024 was retrospectively seeking “to mend” the Respondent’s hands in relation to the termination process which the Respondent refuted though he accepted the letter was “badly worded”. The Respondent accepted that the letter of 19 April 2024 was a termination and not a warning letter – notwithstanding the reference in the letter to “the right to appeal this warning..”. In response to a question as to why the Complainant would attend a capability meeting with the Respondent after he had been dismissed, the Respondent maintained that he had received no contact from the Complainant at all. It was further put to the Respondent that the Complainant had received no previous warnings to which the Respondent replied that there had been a number of informal verbal warnings which had been recorded by the Respondent.

The Respondent stated that in circumstances where the Complainant did not engage or attend a meeting and was seeking social welfare, he presumed he did not wish to continue his employment. The Respondent stated that the Complainant was a skilled worker, that it did not suit to lose him as the company was looking for workers and the Complainant could have returned the Monday following 5 April 2024. It is the position of the Respondent that the Complainant was not dismissed on 5 April 2024 as the exchange which occurred on that date only gave rise to dismissal from the workplace site and not from his overall employment. The Respondent maintained that the decision to dismiss the Complainant was not taken lightly and that the Complainant was fairly dismissed for gross misconduct as per the letter to him of 19 April 2024.

The Complainant stated that he was directed by the Respondent to start work at 5:30 am on 5 April 2024 even though his normal start time was 7am. He stated that he was sent to Dublin to collect materials to bring back to a workplace site. He stated that when he arrived back he was told he would have to work until 3pm. The Complainant stated that he declined to do so as he should have been finished @1.30pm that day given his 5.30am start time. With regard to this exchange the Complainant stated as follows:

“….he started giving out I called him a sneaky rat that he had It all planned he lost it again and said go home and don’t come back in Monday so I tipped up the material up and went home….”

The Complainant stated that the Respondent spoke to him in an aggressive manner, shouted at him and told him “to go home and don’t come in on Monday”.

The Complainant stated that as a result of this exchange with the Respondent he considered he was sacked on 5 April 2024. In that regard the Complainant stated that “it was clear to me my employer had fired me”.  He also stated that he thought the Respondent would ring him on Monday 8 April 2024 which did not occur.

The Complainant stated that he went to the Social Welfare Office on 15 April 2024 to sign on because he was sacked. The Complainant referred to his text to the Respondent of 15 April 2024 in which he requested a letter to confirm he had been sacked/let go and that the Respondent had texted a reply “I’ll sort it”.

The Complainant confirmed that he did not attend the meeting requested by the Respondent “to discuss his dismissal” as per Respondent’s email of 15 April 2024. The Complainant stated that “he knew he was sacked” and that was why he didn’t attend. The Complainant stated that the Respondent failed to advise him that failure to attend the meeting would lead to his dismissal and also failed to advise him of his right to appeal the dismissal decision. The Complainant also stated that he was never “formally verbally warned” about any issue and that he received “no such warnings”. The Complainant stated that he had never previously attended an appraisal or capability meeting. The Complainant furnished copy of correspondence exchanged between his Solicitor and the Respondent of 26 April 2024 and 7 May 2024 respectively.

The Respondent cross examined the Complainant as to why he did not revert to him after 5 April 2024 to which the Complainant replied that he had been “sacked” and “that’s it”.  The Respondent put it to the Complainant that he had planned to leave at some point and start his own business which was disputed by the Complainant. The Respondent also put it to the Complainant that he had helped him with some private matters during his employment and that he still had a trailer and tools belonging to the Respondent. The Complainant stated that he was never told he had not been dismissed.

It is the position of the Complainant that although he had “run ins” with the Respondent none “as bad” as 5 April 2024, that overall he worked well for some thirteen years and considered that he was paid well and had a good job. He stated his dismissal was unfair and disproportionate and that the Respondent’s letters of 15 and 19 April 2024 were seeking to mend the Respondent’s hand in terms of retrospectively applying a dismissal process after the fact of dismissal.  

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

“dismissal”, in relation to an employee, means—

a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee……”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4) of the Act prescribes the circumstances where a dismissal may be justified:

6 (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 ……

(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.”

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“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 [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6 (7) of the Act provides that in determining whether a dismissal is unfair, regard may be had:

“(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…..”

Section 14(1) of the Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Sections 7 (2) of the Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14….or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,….”

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that it acted reasonably, in accordance with its disciplinary procedure or relevant code of practice and that the reason for the dismissal was substantial and/or within the parameters of Section 6(4).

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the poor performance or conduct of an employee and at the same time, afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters.   I have summarised the requirements of SI 146/2000 as follows:

·         To comply with the general principles of natural justice and fair procedures;

·        That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·        That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·        That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

In the Supreme Court decision in Iarnród Éireann/Irish Rail V McKelvey [2019] IESC 79, Charleton J. made the following comments about the conduct of a disciplinary process:

“Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal….. Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her]…..”

Further to the above principles, it has been well established in case law that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer. Rather the focus is whether the decisions arrived at are rational, reasonable and based on the information available.The Labour Court summarised this rationale in the case of Clancourt Management Ltd T/A Clancourt Management V Mr Jason Cahill [UDD2234], where it stated: 

“In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? ……”

Against the foregoing backdrop and having carefully considered all the sworn evidence, submissions, documentation and case law cited, I make the following findings and conclusions:

·        From my consideration of the exchange of 5 April 2024, I am satisfied that both the Complainant and the Respondent contributed to the escalation of matters to the point of dismissal. There was ample opportunity for dialogue after 5 April and the fact that neither party took any initiative in that regard was regrettable and in my view demonstrated a dereliction of usual employer/employee relations;

·        By emails of 15 April 2024 the Respondent sought to arrange a capability hearing. In that regard the email to the Complainant of 15 April @13.04 requested the Complainant to “…attend a meeting on Wednesday 17/04/2024…to discuss your dismissal” and the subsequent email of the same date @13.38 attached a letter and advised the Complainant that he was being invited to a “capability hearing”. The letter of 15 April 2024 attached with this email advised the Complainant that the purpose of the “formal capability hearing” was to afford him the opportunity to respond to “Alleged (Gross Misconduct – failure to follow a reasonable management instruction)” and advised of possible dismissal. The letter of 15 April also advised that “non-attendance without good reason….may be added to the….allegations”. From my consideration of this letter and the Capability and Disciplinary Procedures contained in Respondent’s Employee Handbook, I am satisfied that this proposed hearing was akin to a disciplinary hearing and that the Complainant should have been advised accordingly in clear and unambiguous terms. The Respondent’s Handbook states that a Capability Hearing can result in a formal verbal warning or a final written warning in the first instance whilst the Disciplinary Procedure is normally invoked in cases of misconduct and it provides as appropriate for an informal stage, an investigative stage and a disciplinary hearing. I note that in his evidence the Complainant stated that he had never before attended a capability hearing. I also note that by letter to the Respondent of 26 April 2024, the Complainant’s Solicitor advised that the reference to capability hearing was “not understood”.  In all the circumstances I am satisfied that the failure to identify and apply the correct procedure – ie the Disciplinary Procedure – placed the Complainant at a significant disadvantage;

·        In his evidence, the Respondent stated that after he received the text from the Complainant of 15 April 2024, he wondered if the Complainant had decided not to continue his employment. It was on that same date that the emails and letter were sent to the Complainant requesting his attendance at a formal capability hearing. From my consideration of the evidence, I am satisfied the Respondent was aware that the termination of the Complainant’s employment was a possibility – as stated in the letter of 15 April 2024 -  and therefore the onus was on the Respondent to provide a fair and transparent disciplinary process in accordance with the Respondent’s Employee Handbook and fair procedures generally. In that regard, the charge of alleged gross misconduct should have been fully detailed in advance and the Complainant should have been afforded a reasonable opportunity to attend a disciplinary hearing and prepare and provide his response thereto. Whilst I accept that efforts were made by the Respondent to seek the attendance of the Complainant at the proposed capability hearing and offers made to reschedule and while I consider the Complainant should have engaged at that point, nonetheless I conclude that the time frame allowed – ie between 16 and 19 April 2024 was unreasonably short and unfair. This is all the more concerning since the letter of 19 April 2024 makes clear that the Complainant’s failure to attend the capability hearing “within the time period expressed…” resulted in his termination; 

·        In terms of the right of appeal, the letter of 19 April 2024 is confusing as it advised the Complainant he had a right “to appeal this warning” whilst at the same time advising him that his employment had been terminated. In all the circumstances, I conclude that the Complainant was not clearly and unambiguously appraised of or afforded a right to appeal his dismissal contrary to fair procedures and the Respondent’s Handbook which explicitly provides “The disciplinary rules and procedures incorporate the right to lodge an appeal in respect of any disciplinary action taken”. Further had the Complainant chosen to appeal this was to be submitted to the Respondent’s Director who was involved in the incident of 5 April 2024 and not to a person unconnected with the disciplinary process as referred to in the Respondent’s Handbook;

·        In terms of the conflicting evidence as to whether the Complainant was previously issued with formal verbal warnings, I note the Respondent’s Handbook provides for the issue of verbal warnings to last six months and written and final written warnings each to expire after twelve months. In respect of each of these warnings the Handbook states that “The duration of a formal warning will take effect from the date that the letter is issued to the employee and the formal warning will be disregarded after its expiry”. Whilst the Respondent’s letter of 19 April 2024 referred to a list of warnings, no letters of warnings were furnished to me. In the absence of such records being provided, I conclude the Complainant was not issued with prior warnings over the course of his almost thirteen years service, in the manner provided for in the Respondent’s Handbook.

In light of the foregoing, I consider the Respondent has not discharged the burden of demonstrating the Complainant’s dismissal was fair, reasonable or proportionate or that the process was conducted in accordance with fair procedures. That being said, I also consider the Complainant should have been more pro-active in terms of engaging with the Respondent regarding his employment after 5 April 2024. 

CA-00063781-001

For the reasons outlined this complaint is well founded.  I decide that compensation is the appropriate remedy and I note this was also selected by the Complainant. Section 7 of the Unfair Dismissals Acts [1977 – 2017] provides for payment “of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration ……) as is just and equitable having regard to all the circumstances”. Financial loss is defined  “….as including any actual loss and any estimated prospective loss of income attributable to the dismissal ….”.  In addition, I am required to have regard to any such measures as were adopted by the Complainant to mitigate his losses and to the extent of compliance/failure to comply, on the part of the Respondent, with any dismissal procedure or code of practice.

The Complainant’s gross weekly pay was €977.55. He stated that he only obtained work for four days between the termination of his employment and the 1st August 2024 and for that period his financial loss was €15,977. The Complainant was self employed after the 1st August 2024 and while he outlined his financial losses after that date he provided no evidence of this. I consider that as a self employed person his earnings after the 1st August 2024 were within his own control.

Having regard to the foregoing and to my findings and conclusions, I hereby award the Complainant €9000 gross pay to compensate for his loss of earnings arising from the unfair dismissal which I consider just and equitableinall the circumstances. This amount is subject to such statutory deductions as may apply.

Unfair Dismissal