Complainant

Respondent

Parties

Craig  Murphy

Murphy International Ltd

Representatives

Aengus O’Maolain BL, instructed by Crushell & Co Solicitors

Siobhan Mc Gowan BL, instructed by Purdy Fitzgerald Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00066781-001

18/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066781-002

18/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066781-003

18/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066781-004

18/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00066781-005

18/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00066781-006

18/10/2024

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

CA-00066781-007

18/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066781-008

18/10/2024

The complainant was employed as Head of Operations, Plant and Transport when he was dismissed on 5th July 2024. His salary was €98,800.00. He claims he was unfairly dismissed. He further claims that he was not paid his notice period, Sunday premium, and overtime worked.

The respondent denies the claims in full.

Summary of Mr Craig Murphy’s Evidence

The complainant, Mr. Murphy outlined his background with the company from when he commenced in July 2004. Over his time with the company, he was promoted three times. He said the company had grown substantially along with his role as manager over plant and machinery. Along with his salary there was a discretionary bonus. He said he worked day and night and was committed to the company. He described the morale within the company as good until issues arose prior to his dismissal.

He described a situation under which a colleague may have held a grudge against him. He said that he had sought planning permission to build a house on a site close to the company. This initial site did not work out. He then commenced building on a new site in April 2023.

In May 2024, when he was leaving a board meeting, Mr Kerr met him and brought him into another room. He said Mr Kerr had documents spread out on the table and he asked him several questions. Prior to asking these questions, Mr Kerr requested permission to record the meeting. The questions related to complaints by a whistleblower, and Mr Kerr informed him he was investigating these. The complainant said he felt like he had been arrested, as four complaints were put to him at the meeting which was being recorded. A few days later, he contacted Human Resources and his manager to obtain a copy of the recording. He was also concerned about how the matters were being handled. Human Resources referred him back to Mr Kerr. He said that at this time he was not aware of the seriousness of these matters. When he obtained the recording, there was a section missing. He was trying to work as normal although he was aware that Mr Kerr was interviewing his colleagues on site and this made it even more difficult for him.

He was then invited to a formal meeting which he attended with a colleague. He was asked further questions and shown photographs. Prior to this meeting, he had been suspended with pay. While on suspension he became aware that there may have been some monitoring of his house. He said he still did not suspect that he would be dismissed, and things would be resolved. However, once he attended further meetings, he felt the dismissal had already been decided. After the dismissal, he appealed the finding of dismissal and attended the appeal hearing.

He felt he was wrongly accused of causing expense to the company. The use of company plant at his private house was only in use when not required for company jobs. If it was required, it would have been returned. He said there was no actual/potential loss and that the costings drawn up were exaggerated. He said that he had worked hard for the company over many years and had assisted the owner’s family with jobs when requested. He said that it was normal practice within the company for plant to be used privately by staff. He said he arranged for work on his house gates in the company workshop when it was not busy and without affecting company business. He said that due to being under pressure at the time, he had not re-imbursed the company for approximately €700. Once informed, he arranged for it to be deducted from his salary. He said he normally paid for work on his house by cash although this was not always possible. At the appeal hearing, he felt he was not listened to and the decision to dismiss was made from the outset. He said the circumstances of his dismissal were strange and he thought things could have been handled differently.

On his working hours, he said that he was told to record the standard hours, even though he was on call and attended the company site on some Saturdays. He said he worked some hours on Sunday on his laptop as the company was busy. He said he did not receive notice pay when he was dismissed.

After his dismissal he found it difficult to find a comparable job. He had a job offers lined up which fell through. He felt this was due to rumours.

Then got work for 12 weeks before that company was downsized. He was now earning 20% less and lost out on health insurance.

Under cross-examination by Ms Mc Gowan, he was asked about the seniority of his role within the company. It was put to him that two of the four allegations had been dropped and that he had admitted to using the company plant without permission during the comprehensive investigation. He replied that due to his senior role he would not have much interaction with his manager and that the use of plant for private use was common across the company.

He was asked why initially he did not expect to be dismissed when he was on notice of this possibility in letters prior to meetings. Although he was not on notice of the May 2024 meeting, it was put to him that these matters were rectified in that he was afforded due process throughout. He replied that he did not consider himself fairly treated as other staff had used plant also.

It was put to him that as a manager he had flexibility in the way he organised his own hours. Under his contract he was obliged to work outside of normal hours when required. He replied that the business demands dictated his hours. The hours were always above the normal contracted hours and included some work at weekends.  

The Adjudication Officer asked about the investigation and disciplinary process as per the company policies. He replied there was no informality as he could not contact his manager. He said he did not consider the May 2024 meeting as being informal as he felt he had been arrested and put under questioning with his responses recorded.

Closing Submission

Mr O’Maolain summarised all complaints and acknowledged that the notice period may be linked to the outcome of the dismissal complaint. He accepted that procedures improved from June 2024 onwards. He focussed on the unfairness of 23rd May 2024 meeting. He submitted that the complainant was not on notice of complaints and was forced to attend without representation. He said the responses were recorded and relied upon. His responses at this meeting followed him throughout the process. The ultimate sanction of dismissal was unreasonable as other staff including senior managers had private use of plant.

Due to data access difficulties, there was no documentary evidence on working hours and therefore, the complainant’s testimony should be relied upon. He concluded that although the complainant sought other employment to mitigate his loss, a number of job offers were withdrawn.

Ms Mc Gowan described the company and outlined the protected complaints against the complainant. Mr Kerr who investigated the complaints was called as a witness.

Summary of Mr Kerr’s Evidence (under oath)

Mr Kerr confirmed his role as Security Manager for Ireland, based in Newry. He said that complaints were made by a whistleblower, and he was asked to investigate with Mr Ascott. He wanted to bring the complaints to the attention of the complainant as soon as possible. He was aware he would be attending the board meeting on 23rd May 2024, so he waited until he was leaving and brought him into a meeting room. He had pre-prepared questions to put to him. He got his agreement that the meeting could be recorded. The responses were recorded, and notes were taken. There was a difficulty with part of the recording which was due to his error. He said on 6th June 2024 he invited the complainant to attend a formal meeting. As per the earlier meeting on 23rd May 2024, there were four allegations cited, and he went through the documentation and information from the plant tracking system. He said he shared all information with the complainant including photos that were available up to 6th June 2024. He said he wanted to complete the investigation quickly and the meeting was held on 12th June 2024. The complainant attending with a colleague. When the complaints were put to the complainant, his response was that this was normal within the company. He said the complainant did not deny that plant was used for private use without permission. Regarding the work on house gates in the workshop, the complainant said he had assumed he had permission. Mr Kerr said he felt he was not getting full co-operation from other staff at the initial stage of his investigations. The suspension letter was issued by Human Resources and there was another meeting with the complainant on 19th June 2024. He said the complainant co-operated fully and was afforded an opportunity to respond to all complaints. Once it was established that monies were owed to the company, he was aware that the complainant arranged for repayment from his salary. After the investigation report was completed, it was forwarded to his manager.

Under cross-examination by Mr O’Maolain, he was asked how he became aware of the complaints. He replied that it was a protected complaint. He was asked about the fairness of the meeting on 23rd May 2024 and the recorded responses. He replied that it was not an accusatory meeting, and he felt it was best to bring these issues to his attention as soon as possible.

He was asked whether the complainant was aware of a potential disciplinary sanction. He replied that his role was to establish the facts, and it was not a disciplinary process. It was put to him that he was well prepared for the meeting. He replied he just had the complaints typed out. He invited him to respond to the complaints. He wanted to minimise conflict or embarrassment. On the audio recording, he clarified that the recording was for 6 minutes of a 30-minute meeting.

He was asked about the confidentiality of the investigation. He replied that he did everything he could on confidentiality although he suspected staff were talking about it.

Summary of Mr Corr’s Evidence (under oath)

Mr Corr confirmed his role as UK Lead in Energy Business. He said he was given the investigation report and held the disciplinary meeting. He said that ultimately there were only two complaints. The complainant was accompanied by a colleague. He said the complainant was given every opportunity to respond to the allegations. As the issues around the payment for products were cleared up, these were not pursued. Regarding the use of plant, the complainant’s response was that this was normal practice within the company when plant was not in use.

He said he needed to check a few things after the disciplinary meeting and then decided on an appropriate sanction. He said he decided on dismissal as the complainant had obtained significant benefit of plant without permission. Another factor was that he was a manager who was in a position of trust. The company needed to have trust in how that part of the business was run. Although the plant may have been idle, there is still a cost to the business on wear and tear. He said he considered a range of penalties and the policy allowed for dismissal given what had occurred. He said there was no other role to bring him back to.

Under cross-examination from Mr O’Maolain, he was questioned on any loss to the company by the complainant’s actions. He replied that the tracking utilisation report recorded the movement of the plant and other staff did not use plant to that extent without permission. He said he was concerned that the complainant was relying on a defence that staff were not busy.

Closing Submission

Ms Mc Gowan submitted that the complainant was a manager on a good salary and was not paid an hourly rate. He had flexibility in scheduling his hours. His contract had a flexibility clause to work outside of normal hours when required. The complainant decided of his own accord to work some hours on Sundays, and the company was not on notice of this. As it was within his contract, it should not attract a premium payment.

Regarding the dismissal, the actions of the complainant are not in dispute as he admitted to using plant without permission. The investigation was comprehensive.  Any discrepancies were minor and can be overlooked once the overall process was fair. The conduct falls under gross misconduct under the company policy. The decision to dismiss was reasonable in the circumstances and one which any reasonable employer would make particularly given the manager status of the complainant. In conclusion, it was submitted that there is a question over whether the complainant fully mitigated his loss and sought alternative employment, and this clarity was awaited from his representative.

Relevant Law:

The Unfair Dismissal Acts, 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the 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 Acts provides:

“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”.

Section 6(4) of the Acts provides:

“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: . . . (b) the conduct of the employee . . . .”

Section 6(7) of the Acts 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 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 [the procedure which the employer will observe before and for the purpose of dismissing the employee] or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

On (a) above, the process of adjudication does not decide the question of whether, on the evidence before it, the employee should be dismissed. The task is to considerwhat a reasonable employer would decide. An Adjudication Officer should have regard to the reasonableness of the employer’s conduct in relation to the dismissal.  This requires a determination of the range of responses which a reasonable employer could have taken having regard to the nature of the case and then a consideration as to whether the employer’s decision lay within that range.

On (b) above, this relates to the process under which the dismissal took place. Fair procedures are not perfect procedures. The role of an Adjudication Officer is to establish if the process followed by the company conformed to the accepted standard of fairness and objectivity. A central consideration is whether any purported breach of due process endangered a fair hearing or a fair result. Generally, fair procedures require that details of any allegations of wrongdoing are put to the employee concerned, the employee is given the opportunity to respond to these concerns, the employee is given an opportunity to avail of the right to be represented, and the employee is afforded a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, and circumstances.

CA-00066781-007-Finding on Unfair Dismissal

The fact of dismissal is not in dispute and accordingly the burden of proof rests on the respondent company to show that it had substantial grounds to dismiss the complainant, that it followed fair and reasonable procedures, and that the sanction of dismissal was proportionate having regard to all the circumstances. 

Reasonableness/Proportionality

The testimony at the hearing revealed that the complainant did not get permission for the private use of plant or for work carried out at the respondent’s workshop. These matters were regarded by the respondent company as gross misconduct and therefore warranted dismissal. The alleged misconduct is not straightforward though as the complainant’s testimony was that the private use of plant/equipment was common practice within the company. Whilst this practice was not robustly contested by the respondent, the testimony was that permission and approval was required, and the extent of the complainant’s use was excessive. The testimony of the respondent manager also confirmed that due to the complainant’s role as manager that trust, and confidence was damaged.

From the complainant’s perspective, he used plant when not in use. As he had no requirement to regularly interact with his manager, he saw no need to obtain permission.

On the substantive fairness, the respondent company need only show that it’s decision to dismiss fell within the band of reasonableness, given the circumstances.  This includes consideration of factors such as-

·         The nature of the respondent’s business.

·         The wrongdoing and its impact or potential impact on the business.

·         The wrongdoing and potential impact on other staff.

·         The disciplinary record of the complainant.

·         The length of service of the complainant.

·         Any other relevant or mitigating factors. 

According to the complainant, a mitigating factor was that a grudge may have been held against him. Despite this, the onus was on the respondent to establish certain facts after complaints were received. It is well established that regardless of the strength of the evidence or admission of actions, the sanction imposed must be proportionate. A consideration of the respondent was having trust and confidence in the complainant as manager. I am satisfied with the testimony of the managers who conducted the disciplinary/appeals process that due consideration was given to arriving at an appropriate sanction, and that this was proportionate in the circumstances.  

For the reasons outlined, I find the sanction of dismissal comes within the band of reasonable responses of an employer and was proportionate, in the circumstances.

Procedures

I note the respondent relies on their own Disciplinary Procedure along with the SI 146/2000 Code of Practice. The initiation of the investigation falls short of these procedures in that the complainant was taken by surprise and not afforded advance notice of the complaints made. Although testimony was given that this was a genuine attempt to flag the issues as early as possible, this intervention went too far in that his responses were recorded. The failure to put the complainant on notice of the complaints in advance along with the lack of notice of this meeting on 23rd May 2024 was a breach of fair procedures. The complainant’s written responses from this meeting were referenced during the follow-on formal investigation meetings and was contained in the final investigation report.

After the meeting on 23rd May 2024, the complainant was expected to work as normal with formal interviews being held on site with his colleagues. On 5th June 2024, the complainant e-mailed the investigator, Mr Kerr, and copied his line manager and Human Resources with his concerns. These related to a timeframe, the recording, his welfare, confidentiality and queries from colleagues on what was going on.

Although the paid suspension was put in place a week later, the above concerns demonstrate how the initiation of the investigation had damaged confidence in the process.

It is noted from 19th June 2024 meeting that statements relied upon during the investigation were only brought to the complainant’s attention during the meeting-

“These statements were taken yesterday so we weren’t in a position to give you more notice of them because they didn’t exist until yesterday, so apologise we couldn’t give you more time there but I said take your time to review them prior to you coming back in. Are you happy you’ve had enough time to review them?”

Although the complainant consented to proceed, these cumulative flaws undermined the integrity of the process. As the complainant was on suspension at that stage, the rapid pace of the investigation was unwarranted.

The complainant gave testimony that he felt his views were not taken on board during the process and that matters were already predetermined. This is reflected at the end of the meeting on 1st July 2024 when the complainant questioned the fairness of the process and referred to the earlier meeting on 23rd May 2024. The complainant also made representations on the flawed investigation process at appeal stage.   

Ms Mc Gowan submitted that minor procedural omissions are not fatal once the complainant was afforded due process over the totality of the investigation and disciplinary process. The complainant’s representative submitted that procedures did improve although the meeting of 23rd May 2024 was so unfair that it undermined the whole process. It meant that the complainant would be held to his recorded responses. The complainant representative relies on the Labour Court case of Noonan Services Ltd v. Michal Buckowski, UDD198, that even though minor errors can always occur and be rectified, the failure to provide advance documentation and notice of the meeting was fatal. Noonan concerned whether an internal workplace investigation was conducted fairly-

‘The Court does not dispute the fact that the process does not have to be flawless however, in this case as a number of issues have been highlighted which in the Court’s opinion go to the heart of the complainant’s ability to answer the charges being laid against him. In particular, the failure to provide him with all documentation being relied on by the decision makers at the various stages of the process and the failure to provide him with some of the allegations in advance of the investigation into same.’

For the complainant in this case, the way the investigative process was initiated tainted the rest of the process. I am satisfied that fair procedures were not followed due to the following-

·         The investigation commenced without the complainant’s knowledge.

·         He had no advance knowledge of the complaints.

·         The complainant was brought to a meeting with no time to request to be accompanied.

·         The recording of his responses was relied upon throughout the process.

As per Noonan, although minor errors can be rectified, the cumulative flaws in this case were beyond rectification despite the endeavours of the managers conducting the disciplinary/appeals process.

As noted by Redmond, “the concept of fairness is located within a framework which accepts that the employer has the right to dismiss where this is necessary to protect its business interests. To that extent it adopts an employer perspective. At the same time, the law requires that employers should not remorselessly pursue their own interests. The employee’s interests must be considered as well. The function of fairness is to reconcile these interests.” (Redmond on Dismissal Law, 3rd ed., Bloomsbury Professional 2017 at [13.01]). 

The initiation of the investigation without the complainant’s knowledge or advance warning showed that the employee’s interests were not considered.

In conclusion, for the reasons outlined, I find that due process was not afforded to the complainant. As the procedural aspect of the dismissal was flawed, it automatically entails that it was an unfair dismissal.

Redress

Section 7(2) of the Acts provides:

“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 said financial loss was attributable to an action, 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, and

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

Section 7(3) of the Acts provides:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

As provided for at section 7(1) of the Acts, where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress. The complainant is seeking compensation, and I agree that this is the appropriate redress.  Compensation is based on financial loss arising from the dismissal. Mr O’Maolain submitted details of actual/prospective financial loss due to benefits, a bonus and reduced future earnings. I estimate the loss of gross earnings at €30,000 which includes prospective financial loss.

Section 7(2) of the Acts provides that in determining the amount of compensation payable I must have regard to (a) to (f). The complainant co-operated fully with the internal company processes. I found his testimony to be honest and consistent with the documentary evidence. I am satisfied that he made adequate attempts to find alternative employment to mitigate his loss. However, he contributed substantially to his dismissal by his actions. I find it just an equitable to reduce the award by €10,500 leaving a payment of €19,500 which is the equivalent of approximately 10 weeks’ pay.

I find it is just and equitable to direct the respondent to pay the complainant the equivalent of 10 weeks’ wages which is €19,500.00.

 CA-00066781-004- Organisation of Working Time Act (Sunday Work)

I note that the respondent was not on notice that the complainant worked some hours on his laptop on Sundays.  The complainant’s contract stipulated that ‘You may on occasion also be required to work additional hours to cover the exigencies of your role.’

In essence, there was no onus on the complainant to carry out this work on a Sunday, and I find that this complaint has not been made out.

For the above reasons, I decide the complaint is not well founded

CA-00066781-005- Payment of Wages Act (Overtime)

Under the Payment of Wages Act, the first issue is to establish the wages that are properly payable to the complainant. The complainant gave testimony that due to the demands of his role he worked additional hours and that he was not paid for these hours. The respondent submitted that there was flexibility for additional hours within the contract and as manager he could determine his own hours. 

I note that the complainant’s contract stipulates that ‘Your normal hours working hours are as per site/department requirements, typically based around the core hours of Monday to Friday 8am to 5pm each week with one hour for lunch. You may on occasion also be required to work additional hours to cover the exigencies of your role.’

There was an absence of evidence of the specific dates and details of additional hours worked. There was no evidence of time sheets or correspondence requesting payment for additional hours which would be expected if the complainant was consistently working substantially more than his contracted hours. Although the complainant gave testimony that he worked over and above his normal hours, there is insufficient evidence to find that wages for additional hours were properly payable, as per the Act.

For the reasons outlined, I find that the complaint is not well founded.

CA-00066781-006- Payment of Wages Act (Notice Pay)

Although I have already found that the dismissal was unfair, this was due to a flawed procedure. To be paid notice pay under the Payment of Wages Act, I must first decide whether the wages are properly payable. The contract of employment under Clause 19 (c) refers to non-payment in lieu of notice in cases of summarily dismissal. The company procedures also list out examples of potential gross misconduct which include unauthorised use of property. It also states that ‘Gross misconduct is of such a serious nature that you may be dismissed without notice even for a first offence.’

For the reasons outlined, I find no basis that wages were properly payable for the notice period. I decide the complaint is not well founded.  

CA-00066781-008- Organisation of Working Time Act (Annual Leave/Notice)

No evidence was submitted that there was annual leave due at the end of the employment. I have already decided on the notice period in CA-00066781-006, as above.

I decide the complaint is not well founded.

CA-00066781-007- Complaint under Unfair Dismissals Act

I find the complainant was unfairly dismissed and it is just and equitable to direct the respondent to pay the complainant the equivalent of 10 weeks’ wages which is €19,500.00. 

CA-00066781-001- Terms of Employment (Information) Act

The complainant withdrew this complaint at the commencement of the hearing.

CA-00066781-002- Organisation of Working Time Act (Maximum Hours)

The complainant withdrew this complaint at the commencement of the hearing.

CA-00066781-003- Organisation of Working Time Act (Rest Breaks)

The complainant withdrew this complaint at the commencement of the hearing.

CA-00066781-004- Organisation of Working Time Act (Sunday Work)

I decide the complaint is not well founded

CA-00066781-005- Payment of Wages Act (Overtime)

I decide the complaint is not well founded.

CA-00066781-006- Payment of Wages Act (Notice Pay)

I decide the complaint is not well founded.   

CA-00066781-008- Organisation of Working Time Act (Annual Leave/Notice)

I decide the complaint is not well founded.

Unfair Dismissal, Hours of Work