Complainant

Respondent

Parties

Tony Wickham

IMAC Facilities Management Ireland Limited

Representatives

Connect Trade Union

Management Support Services Ireland Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00068079-001

13/12/2024

The respondent terminated the complainant’s employment on 25 October 2024.

The complainant referred a claim under the Unfair Dismissals Act 1977 seeking redress of compensation.

The respondent disputed the claim; it dismissed the complainant for gross misconduct.

Summary of submissions

The complainant was employed by the respondent as a general maintenance worker, carrying out work at various third-party store locations.

The respondent informed the complainant on 24 September 2024 of a complaint from the third-party concerning the complainant’s conduct at a specified store on 13 August 2024. The respondent provided the complainant with a document said to be the third-party’s complaint and advised that the respondent considered the issues raised to highlight serious performance issues and that the respondent may have to initiate disciplinary action.  

The complainant outlined his position in response in a letter dated 26 September 2024.

On 10 October 2024, the respondent informed the complainant of its view that application of the disciplinary procedure was justified and of a disciplinary hearing on 22 October 2024.

On 25 October 2024, the respondent notified the complainant of its decision to dismiss the complainant with immediate effect.

The complainant exercised his right of appeal as he considered the sanction disproportionate.  The respondent’s decision was upheld on appeal.

The complainant’s dismissal occurred shortly after a transfer of undertaking; the respondent took over the general maintenance contract for the stores of the third-party.  There were communication problems with the existing workforce about how the respondent wanted the work carried out from the time the respondent took over the contract in June 2024.

There was no evidence of the allegations relating to the complainant’s unwarranted mobile phone use or of his leaving the store on the date in question.  The main allegation was of falsifying records in relation to a bi-annual inspection of a food display case.  The complainant admitted that he did not clean the case, but he had put back the inspection date by 2 weeks so that it could be inspected on a later date.  The inspection was not food critical and could have been carried out subsequently if need be.  The complainant accepted that he did not undertake scheduled work to clean gutters and undertake a roof inspection on the date in question; it was raining and the request of the complainant was to work alone on a roof in unsafe conditions.

The complainant had an exemplary record up until 13 August 2024.  The respondent’s decision to dismiss the complainant was neither reasonable nor proportionate grounded as it was on inadequate and insufficient evidence of wrongdoing on the complainant’s part. 

Summary of complainant’s oral evidence

The complainant had worked for another company on the third-party contract for over two years before his employment transferred to the respondent.  The complainant continued working on the contract after the transfer. 

The complainant described his duties and the events of 13 August 2024, when he was covering for a colleague at a store he did not usually attend. He attended and logged on as normal, waiting to be let in as no staff were present on arrival.

The complainant was unable to clean the refrigeration case because it had not been stripped out.  This cleaning was not food safety critical; it related to maintenance of the case.  The cases were inspected every 6 months and often there were greater periods of time in between case cleaning.

Regarding the sticker the complainant put on the case, he pushed the cleaning date out by 2 weeks for his colleague to clean the case on his return.  The complainant told his colleague about this.

The complainant did not do the roof maintenance due to health and safety concerns.  There was no harness attachment line, and no one to accompany him on the roof.   

The complainant received the respondent’s health and safety policy and Employee Handbook but had not been given the disciplinary procedure.

The complainant believed his dismissal was unfair, that anyone could have gone back to clean the case and that dismissal was unreasonable in the circumstances.

Cross-examination

The complainant was aware a disciplinary procedure existed but had never received or had cause to familiarise himself with it.  The procedure should have been provided in advance so that the complainant knew how to deal with things. He had no forewarning about something that could result in his dismissal and these points, which he raised at the disciplinary meeting, were not recorded in the minutes.

The complainant accepted leaving the store on 13 August; he left to collect parts or take a break, which were not formally recorded. He marked the refrigeration case cleaning as complete due to a lapse in attention.  The case had not been emptied for cleaning, and he informed the store manager of this on the day in question.  The complainant did not explain at the disciplinary meeting that he had put the case cleaning back by 2 weeks; what he said during the disciplinary process would not have made any difference and he did not want to involve his colleague in the matter.

The complainant’s phone use on 13 August was work-related.  The complainant did not provide detail in this regard during the disciplinary process to avoid involving his work colleagues.

Explaining his health and safety concerns in relation to the roof work during the disciplinary process would not have altered the outcome; the respondent wanted to dismiss him.

Summary of respondent’s submissions

The respondent disputed the unfair dismissal claim; the complainant was dismissed for cause arising from his conduct and the dismissal was not unfair.

On 24 September 2024, the respondent received an email from its client concerning the complainant’s conduct on 13 August 2024 when he was assigned to work at the client’s store under the preventative maintenance contract between the respondent and the client.

On receipt of the email, the respondent initiated an investigation, and Mr Kerlin contacted the complainant for his response to the client’s account.  Mr Kerlin considered the issues serious enough to warrant disciplinary action and convened a disciplinary hearing. 

Mr Kerlin decided to dismiss the complainant because his conduct on 13 August constituted a grave breach of trust amounting to gross misconduct.  The decision was upheld on appeal.

It was submitted that the various conduct-related actions on the part of the complainant, which the complainant failed to explain or provide any satisfactory explanation, taken together, amounted to a grave breach of trust and gross misconduct justifying dismissal.

The respondent’s procedures were fair and in accordance with the relevant Code of Practice. 

The sanction of summary dismissal was reasonable.

Summary of Gerald Kerlin’s oral evidence

The witness, a director of the respondent facilities management company, outlined the nature of the business and the complainant’s role in the respondent’s fulfilment of a third‑party maintenance services contract. Concerns were raised by the third-party about the complainant’s conduct and performance on 13 August 2024, including inaccurate recording of completed work, limited work activity, phone use, leaving the site, and cancellation of roof and gutter tasks.

On 24 September 2024, the respondent informed the complainant of the concerns raised, and the complainant responded in writing.  The witness’ impression of the complainant’s response was that the complainant did not understand the gravity of the matter; the complainant’s responses were flippant and he did not appear concerned or remorseful. 

The witness did not accept the complainant’s explanations, and a decision was taken to apply the respondent’s disciplinary procedures.  Mr Farren wrote to the complainant on 10 October 2024 setting out four particular matters justifying application of the respondent’s disciplinary procedure.

The complainant attended a disciplinary hearing on 22 October 2024 with his union representative.  The complainant was informed of the respondent’s decision to dismiss the complainant with immediate effect on 25 October for gross misconduct due to falsely recording work completed, resulting in a loss of trust and confidence by both the respondent and the third party.

Cross-examination

The complainant’s dismissal was primarily due to falsifying cleaning records, which was deemed gross misconduct.  The other issues were relevant.   The issue was that the complainant had recorded the cases as cleaned, when he had not done so. The witness outlined the procedure for having cases stripped and the procedure if not emptied before a scheduled inspection/cleaning.  The respondent was contracted by the third-party to provide a service, cleaning records were falsified and the respondent’s views on case cleaning from a food safety perspective were immaterial. 

The witness did not accept that falsifying a record was a minor or teething issue.  The complainant had not referenced a postponement of the case cleaning during the disciplinary process, or that he had asked someone else to clean it, and furthermore this facility in the system does not exist.

The complainant had received a copy of the respondent’s disciplinary procedure and Employee Handbook. 

The witness disagreed when put to him that dismissal was a disproportionate sanction.  The complainant showed no remorse, and the witness had no comfort that the conduct would not reoccur.  The witness defended dismissal as proportionate, denied any link to the transfer of undertaking, and stated the respondent acted promptly on receiving the report from the third-party.

Re-examination

The complainant made representations in relation to the four issues raised, which representations were considered.   The complainant had an opportunity to defend himself on more than one occasion and had the benefit of representation.  The explanations provided had the effect of damaging the respondent’s trust in the complainant. 

The witness conveyed to the complainant the allegations and made the decision to dismiss on the facts before him.

The third party did not provide any other information or raise any other issue other than those of which the complainant was informed on 24 September 2024.  The respondent’s request for CCTV footage was declined by the third-party on data protection grounds. 

Summary of John Farren’s oral evidence

Mr Farren is founder, director, and CEO of the respondent.  He emphasised the importance of trust given the unsupervised nature of the complainant’s work. Mr Farren attended the disciplinary hearing representing the respondent’s interests and took notes.  The decision to dismiss was made by Mr Kerlin, and Mr Farren fully agreed with the decision.

The appeal, managed by a business consultant, upheld the dismissal.

Cross-examination

Our decision was based on the facts.  It was a fact that the third-party did not want the complainant back.  The case cleaning issue was most serious.  It did not matter what the third-party’s view was, the respondent could not trust the complainant.

The complainant’s employment with the respondent was terminated with immediate effect on 25 October 2024 on grounds of gross misconduct.  The decision to dismiss was upheld in an appeal process at local level.  The complainant secured alternative employment on 9 December 2024, on a higher hourly rate of pay to that which he had in the respondent’s employment.  

The complainant contends the sanction of dismissal was disproportionate and unreasonable and that issues with the respondent’s disciplinary process rendered the dismissal unfair.  It was submitted that the complainant had accepted he made a mistake in relation to the case cleaning, had put up his hand for this, and a reasonable employer would not have moved to dismiss.   The complainant seeks compensation by way of redress for unfair dismissal.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) 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)(b) of the Act deems for the purpose of the Act a dismissal resulting wholly or mainly from the conduct of the employee, not to be an unfair dismissal. 

In accordance with section 6(6) of the Act, it is for the employer to show that the dismissal resulted wholly or mainly from the conduct of the employee or that there 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 …”

My role is to decide against the facts whether the respondent’s decision to dismiss was reasonable.  Submissions on behalf of the complainant, and the complainant’s evidence at hearing in response to the disciplinary charges, differed from the complainant’s position and responses provided during the disciplinary process.  My assessment of the respondent’s decision to dismiss is based on the information that was before the respondent at the time it took the decision to dismiss.  Similarly, documentation submitted in support of the disciplinary charges against the complainant that did not form part of the respondent’s deliberations during the process are not relevant to my assessment of the decision.

The Decision to Dismiss

The complainant worked as a general maintenance operative with the respondent.  The respondent provides preventative and reactive maintenances services to customers.  On 13 August 2024, the complainant was scheduled to attend a third-party client premises in the south-east of the country.  Tasks for the complainant to undertake on the day were assigned via the client’s work management system.

The third-party raised several issues with the respondent regarding the complainant’s conduct and performance on the 13 August 2024.  The respondent requested this in writing, and an email from the third-party to the respondent of 24 September 2024 set out the issues. The respondent informed the complainant of these issues on the same date and expressed its view of very poor work performance.  The respondent advised that disciplinary action was possible but that before finalising its decision in this regard, the complainant had an opportunity to respond if he wished to do so.  The respondent’s correspondence included the third-party’s email in an extracted format.

The complainant responded by letter dated 26 September 2024, which included his response to each of the issues.  The complainant also expressed a growing sense of discomfort regarding certain interactions since joining the respondent.

Mr Kerlin responded on 2 October 2024 advising of the grievance procedure for any particular issue the complainant may have and expressed his view that the complainant’s response was somewhat evasive and unhelpful.

Mr Farren’s letter to the complainant dated 10 October 2024 set out four specific matters justifying application of the disciplinary procedure, summarised as follows:-

(i)               Failure to carry out proper case cleaning and falsifying a company record to imply this had been done;

(ii)              Spending unwarranted time on a mobile phone;

(iii)            Leaving the store for a period of time;

(iv)            Not carrying out scheduled work on gutters and a roof inspection.

The complainant was informed that Mr Kerlin would handle the disciplinary hearing on 22 October 2024, and the complainant was entitled to have a colleague or trade union representative accompany him to same.

By letter dated 25 October 2024, the complainant was informed of the disciplinary decision to dismiss with immediate effect, which decision was grounded on the concerns put to the complainant, the complainant’s position in response, and an instance of gross misconduct referable to the false recording of work. 

The decision to dismiss was upheld on appeal at local level.

I am satisfied of substantial grounds justifying investigation and disciplinary action by reason of the following:-

(i)               the complainant worked remotely in the respondent’s fulfilment of its service contract with a third-party;

(ii)              the nature of the complainant’s work required the respondent’s trust and confidence in the complainant to properly and to the best of his ability complete scheduled tasks;

(iii)            on 13 August 2024, the complainant attended on site in the south-east of the country to carry out the work detailed in the third-party’s work schedule;

(iv)            a scheduled task was for the complainant to undertake refrigeration case cleaning;

(v)              the complainant undertook 2 separate actions to record case cleaning as complete on the day in question when in fact the complainant had not cleaned the cases;

(vi)            the complainant’s explanation that he was on auto-pilot when he put a sticker on the case and had a lapse in attention when he marked the task as complete on the work schedule portal was considered unsatisfactory by the respondent;

(vii)           the explanations provided by the complainant in response to the other charges in relation to his mobile phone usage on the day in question when logged in for work at the store, failure to undertake a scheduled task to clean gutters and check the roof and leaving the store without clocking out were also considered unsatisfactory by the respondent.

The Dismissal Procedure

I consider it appropriate to have regard to the respondent’s conduct in relation to the dismissal and to its compliance with its disciplinary procedure. 

I find that Mr Kerlin in his investigation of the conduct and performance concerns conveyed the respondent’s dissatisfaction with the complainant’s responses and ruled out mitigating factors and explanations put forward by the complainant.  By reason of the foregoing, his subsequent involvement in the disciplinary hearing and decision to dismiss the complainant rendered the process unfair and prejudicial to the complainant.  The principles of an unbiased and impartial procedure, expressly provided for in the respondent’s own disciplinary procedures by its reference to the invocation of the disciplinary procure not meaning a pre-determined outcome, or that the employee will automatically be subject to a penalty, were upset by the respondent’s process in this case. 

The evidence tendered by the respondent’s witnesses as to what, if any, weight was attached to the views of the third-party regarding the complainant, his conduct and performance, was inconsistent.  Mr Kerlin’s evidence was that he was not influenced by their views and that he took the decision on the facts before him.  Mr Farren’s evidence was that the client advised it did not want the complainant working at their stores and made it clear to the respondent that the complainant was not welcome back.  Mr Farren’s direct evidence was that Mr Kerlin decided the disciplinary outcome, that Mr Farren’s attendance at the hearing was to represent the respondent’s interests and that the third party’s views were discussed but not really part of the decision to dismiss.  The evidence points to either both Mr Kerlin and Mr Farren making the decision to dismiss, or of discussions between the two on the disciplinary action outside of the disciplinary hearing.  Mr Farren stated it was a fact that the third-party did not want the complainant back working with them and that the respondent’s decision was based on the facts.  In my view, it was not unreasonable for the respondent to take the third party’s views into account.  The consequence however of the inconsistent evidence is to cast doubt over a transparent and fair disciplinary process and decision to dismiss.

I am further satisfied, having regard to the documentation before me including disciplinary-related communications, the minutes of the disciplinary hearing and the complainant’s general response to the concerns raised by the respondent, that the complainant was not aware his employment with the respondent was at stake.  This is supported by Mr Kerlin’s evidence about his impression of the complainant’s initial response being that the complainant did not understand the gravity of the matter.  It is not necessary for me to resolve a dispute between the parties as to whether the complainant was provided with the disciplinary procedure when he signed for the Employee Handbook. It is however relevant that the complainant was not provided with a copy of the respondent’s disciplinary procedure at the material time of the investigative/disciplinary process and that Mr Kerlin’s impression was that the complainant did not understand the gravity of the matter.  I further note that an extract from the disciplinary procedure is attached to the letter dated 25 October 2024, which is the letter of dismissal with immediate effect.

The issues and shortcomings in the process identified above takes the decision to dismiss outside of the range of reasonable responses and renders the sanction of dismissal unfair. I therefore find that the complainant was unfairly dismissed.

Redress

Section 7 of the Act, 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, or

…

(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 complainant seeks redress of compensation.  This was the form of redress addressed by the parties at the hearing and, having regard to all the circumstances, including the fact that the complainant secured alternative employment after the dismissal with no ongoing financial loss, my view is that it is the appropriate form of redress in this case.

I measure the overall financial loss attributable to the dismissal at 6 weeks’ loss of income.  Based on an agreed hourly rate of pay of €17.95 and net weekly remuneration of €664.76, this equates to €3,988.56.

I have had regard to the factors set out at section 7(2) of the 1977 Act in determining compensation payable and consider section 7(2)(a) and section 7(2)(f) to apply. 

The respondent’s decision to effect a summary dismissal without notice was unreasonable and particularly so where the complainant was not expressly informed during the disciplinary process of the risk of dismissal.  Notwithstanding the dispute between the parties on the issue and receipt of the disciplinary procedure by the complainant, I have carefully considered the information contained therein and consider it unclear that the respondent, on its initiation of, and during the within disciplinary process, was considering the level of breach as that of gross misconduct which could attract the penalty of summary dismissal.

I further find that the complainant by his conduct contributed significantly to his dismissal.  It was submitted on behalf of the complainant that a final written warning would have been a sufficient and proportionate response to the complainant’s mistake.  The complainant’s initial response did not dispute the issues raised by the respondent, and I consider reasonable the respondent’s view that the explanations were unsatisfactory.  This view is reinforced by the complainant choosing not to provide fulsome explanations to the respondent during the disciplinary process.   I further consider the complainant’s raising of thoughts that had been on his mind and challenging the third-party’s authority to question the complainant, an effort to detract from the issues raised.  This is supported by the complainant not utilising the grievance policy, to which he was referred by the respondent in relation to any such issue.

Based on the foregoing, I consider an award of €1,330.00 compensation as just and equitable compensation having regard to all the circumstances.  The award represents approximately one-third of the total financial loss and reflects my view that a summary dismissal/dismissal without notice was unreasonable.

I find the complainant was unfairly dismissed.  Having regard to all the circumstances, I consider it just and equitable to award €1,330.00 by way of compensation.

Unfair Dismissal – Conduct – Dismissal procedure – Financial loss calculation