Complainant

Respondent

Parties

Marek  Jasicki

Power City Limited

Representatives

  Killian McGovern BL, Crushell & Co.

Karl Hutchinson Law Plus

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-00040185-001

30/09/2020

The Complainant was employed as a sales assistant from 3rd September 2007.

The Complainant was unfairly dismissed on 25th August 2020 after thirteen years of service due to conduct and quality of work.

He contends that the procedures leading to his dismissal were not fair, unjustified and the sanction is disproportionate. He says he suffered bullying and harassment at the hands of management. Favouritism was demonstrated by management to other colleagues due to their personal or familial connections.

The Complainant says during Covid=-19 customers were waiting in the queue, and he was helping customers with click and collect orders. Sometimes he was helping make product reservations when the shop was full of four to five customers. Staff were guaranteed commission for sales regardless of how much he sold.

The Complainant decided to reduce the queue at the till by helping one customer who had a faulty product. He got information from the customer about the problem, he found customer receipt in the system. When another staff member returned from break and there were not too many customers on the shop floor, he asked his colleague to do her job and book faulty item for repair. His colleague got angry and refused, when he insisted that she did it, she finally agreed to book the service. She complained and he was accused of starting to do a job and not finishing it.

He felt the main accusation that led to his dismissal, was that he created staff frustration and was not getting along with all colleagues. He noticed another person was moved due to bullying and harassment towards him to another store. He noticed senior management were asking other senior staff members to find out anything against him.

He had a number of complaints including dealing with customers for too long, serving customers at the door when covering security rigs and assisting customers with customer service-related issues when it was not part of his job specification.

On 20th August 2020 he was called into a meeting with a Manager and colleagues. He was not given any information in advance of the meeting. A colleague had objected to the Complainant asking her to assist with a defective product problem, when he was assisting with a line of customers. He was accused of spending too much time with customers, and seeking to sell when he should have been covering security breaks. This had been raised previously with the Complainant, and he had addressed the issue. He believed that the manager who was in the meeting did not like him and could not be objective. He did not accept he was guilty of the allegations. During the investigation and disciplinary process, the Complainant repeatedly asked for specific details as to the dates and times that his conduct amounted to misconduct and all evidence and witness statements. This was denied.

He was told that if there was another incident, he would be dismissed.

He returned to work on the 26th of August 2020. He was given a letter dated 25th of August 2020 which informed him he was dismissed. He sought details of the grounds for his dismissal on appeal on 28th of August 2020, and on 8th of September 2020, but none were given prior to the Appeal meeting. He was not given an opportunity to challenge the evidence or cross-examine witnesses. The company relied on a final written warning which had been given on the 16th of September 2019, which the Complainant understood he successfully appealed when he had been moved to another store.

The Respondent failed to apply fair procedures to the disciplinary process for a long-standing employee which had a devastating impact on him as the sole provider for his infant son and partner.

The Complainant relies on the ruling in in Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 and Hennessy – v – Read and Write Shop Ltd UD 192 /1978:

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to:

1. the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and 2. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

The Complainant’s representative submits the dismissal was not in compliance with SI 146 of 2000 and is not within the band of reasonable responses of an employer as the sanction was disproportionate. The Complainant relies on the decision in Allied Irish Banks plc v Purcell [2012] ELR 189 Judge Linnane stated that “It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken”.

The Respondent denies the Complainant was dismissed in an unfair and arbitrary manner. The Respondent says the Complainant has a long history of disciplinary issues, and failure to comply with company policies and procedures. The Respondent accepts there were some procedural failings on its part, but says the dismissal comes within the range of reasonable responses given the Complainant’s persistent disciplinary issues, insubordination and failure to comply with policies. The Complainant contributed to his dismissal.

The Respondent relies on their disciplinary procedure at section 10 which specifies a serious act of insubordination is gross misconduct. It states:

“if on completion of the investigation the company is satisfied that gross misconduct has occurred the result will normally be summary dismissal without notice or payment in lieu of notice”.

The Respondent submits the Complainant had numerous disciplinary issues resulting him being moved to four different stores over the period of his employment. The Respondent felt they treated the Complainant very well in the circumstances. There were numerous incidents including non-cooperation with senior management, false allegations against senior management, providing services to customers outside work hours, difficulties with colleagues and several incidents of removal of electronic items which was not in compliance with the WEEE policy required by legislation and is a criminal offence. The Complainant disregarded the policy. He did not accept the disciplinary issues regarding his conduct or attitude. The store was compelled to comply with Covid-19 regulations and it says it acted reasonably.

On 17 July 2019 the Complainant was given a written warning for interference with a colleagues work, on 16th September 2019 he was given a final written warning for interference with a colleagues work on the shop-floor. This warning was not revoked on appeal and the Complainant was informed of the outcome of the appeal. On 20th August 2020 the Complainant was called into a meeting with a Manager and colleagues following a complaint by a colleague. He was told that if there was another incident, he would be dismissed.

He returned to work on the 26th of August 2020. He was given a letter dated 25th of August 2020 which informed him he was dismissed. The Complainant was informed of his dismissal at a meeting on 26th of August 2020. He wished to appeal. An appeal hearing was arranged for the 9th of September 2020. He was informed that his appeal was unsuccessful on the 21st of September 2020.

Given the Complainants continued failure to comply with company procedures, the Respondent said they had no option but to dismiss him for continuous insubordination and misconduct. They deny any breach of fair procedures.

I heard and considered the submissions of the parties and evidence of the Complainant.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that 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 to 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 statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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.

Section 6 (1) (7) of the Act provides 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 as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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 onus rests on the employer to show there were substantial grounds justifying the dismissal.

The Respondent has a Disciplinary Procedure which provides at Section 10 a list of prohibited conduct amounting to gross misconduct. This specifies that a serious act of insubordination is gross misconduct and states:

“If on completion of the investigation the company is satisfied that gross misconduct has occurred the result will normally be summary dismissal without notice or payment in lieu of notice”.

The decision in Brewster v Burke and the Ministry for Labour [1985 JISLL 98] established the principle that one incident of insubordination can amount to gross misconduct. Insubordination is where an employee “wilfully disobeys the lawful and reasonable instructions of his master.” 

The Respondent submits that the Complainant had persistent disciplinary issues throughout his employment. He had a prior history of non-compliance with the European Union (Waste Electrical and Electronical Equipment) Regulations 2014 which requires recycling of electronic products to ensure they are managed properly and will not cause pollution or damage to human health. It is not disputed that on 17 July 2019 he was given a written warning for interference with a colleagues work, and on 16th September 2019 he was given a final written warning for interference with a colleagues work which remains on his record for twelve months.

While on a final written warning, on 20th August 2020 the Complainant was called into a meeting with a Manager and colleagues in relation to a complaint by a colleague. He was not given any information in advance. He was not provided with written detail of the allegations, and statements or evidence prior to the decision being made to dismiss. It was not provided on appeal either.

In Samuel J Frizelle v New Ross Credit Union[1997] IEHC 137 the High Court set out the following legal principles to be observed:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.

The Respondent failed to provide appropriate detail of the complaints in writing in order for the Complainant to be able to respond properly to the allegations, breaching fair procedures. The employer also failed to comply with Statutory Instrument 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 which I take into account.

In the circumstances, I find the decision to dismiss the Complainant procedurally unfair. I accept the Complainant has contributed substantially to his dismissal. The Complainant has obtained other employment, and the appropriate redress is compensation. Taking into account the contribution of the Complainant, it is just and equitable that he be awarded a sum of 6,000 euro gross financial loss and I direct payment by the Respondent.

The Complainant was unfairly dismissed on procedural grounds. I direct payment of 6,000 euro gross financial loss by the Respondent to the Complainant.