Complainant

Respondent

Parties

Edward  Doyle

Freightspeed Transport Limited

Representatives

Barnaba Dorda SIPTU

John Keenan JRK Business Services

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-00055971-001

06/04/2023

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

CA-00055971-005

06/04/2023

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

CA-00055971-007

06/04/2023

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

CA-00055971-008

06/04/2023

The Complainant submitted two Complaint Forms and his complaints were recorded under two ADJ reference numbers – ie ADJ-00045436 and ADJ-00045288 which were received by the WRC on 4/11/2022 and 6/4/2023 respectively. This decision comprises the employment rights complaints under ADJ-00045288.

The Complainant was employed by the Respondent as a delivery driver on 8 October 2018 and was dismissed from his position with effect from 30th December 2022. The dismissal arose following an incident involving the Complainant whilst he was on a delivery run to a customer of the Respondent on 27 October 2022. The Complainant maintains that his dismissal breached fair procedures and was unwarranted and disproportionate which assertions were consistently refuted by the Respondent. The Complainant raised other complaints in addition to the unfair dismissal claim.

Set out below is a summary of the Complainant’s and the Respondent’s respective cases.

In accordance with the provisions of the Unfair Dismissals Act [1977-2020] the Respondent outlined its position that it had not unfairly dismissed the Complainant. In that regard the Respondent presented the evidence of four witnesses.

Witness 1 – Respondent’s Administration Officer/AO

The AO gave evidence that he received a phone call from a customer of the Respondent/ie its Manager in relation to an altercation which had occurred earlier that day/27 October 2022 involving the Complainant when he arrived in the customer’s yard with a delivery of stock. The customer’s Manager complained about the Complainant and stated that he left the yard with the unloaded stock. Shortly after receiving this telephone call the AO emailed the Respondent’s General Manager (GM) as follows:

-        “Edward Doyle drove into the yard and was asked to wait outside and/or move the truck

-        He then had an exchange of words with an employee of [Customer], where the employees says Edward Doyle was extremely rude

-        The Transport manager then asked Edward Doyle to Leave with the stock as he did not want to deal with Edward.

-        Edward allegedly then started shouting at the manager giving out to him about treating drivers poorly and treating them like scum, when the Manager……turned away to go back inside Edward then allegedly spat in the direction of [Manager]

-        [Manager] then returned back outside when had been told this and asked Edward how old he was to which Edward replied “old enough to take you on”.

Under cross examination the AO stated that he did not speak to anyone else from the customer’s company and that he had not asked the customer’s Manager to put his complaint in writing. The AO stated that he did not find out the name of the customer’s employee involved in the incident. The AO also stated that his colleague/LE was present when he took the telephone call.

Witness 2 – Respondent’s General Manager/GM

The GM outlined her background and experience in the Respondent’s company over 15 years. The GM stated that when she read the AO’s email she went down and spoke with him and his colleague/LE. In her evidence the GM stated that she wished “to distinguish tone and what happened…..get a feeling of how irate….Manager was…” and whether it was unreasonable and unprofessional of the Complainant to get involved in such an altercation. The GM stated that straight after she spoke with the Respondent’s CEO/Witness 4. The GM stated that she determined that an investigation was warranted and that she sourced an Independent Investigator and trusted him to conduct a fair and proper investigation.

The GM wrote to the Complainant on 28 October 2022 and advised that he was being suspended with pay. The GM stated that in her letter to the Complainant of 28 October 2022 she replicated the content of the AO’s email to her of the previous day/27 October. The GM stated that she conducted the disciplinary hearing remotely on 22 December 2022 and that the Complainant was represented by SIPTU. The GM stated that at the disciplinary hearing the Complainant agreed there had been an altercation with the Respondent’s customer on 27/10/2022 and that he had said he was old enough to defend himself. The GM stated the Complainant considered he was “abused and bullied” by the Respondent’s customer.

The GM stated that she decided on dismissal because the person making a delivery on behalf of the Respondent “must do so in a professional manner….and [not] by actually challenging people into the fact that they would not allow….delivery”. The GM stated that the incident of 27 October 2022 gave rise to a lack of trust in the Complainant and that she could not continue to employ him as a driver. The GM concluded “that the level of trust necessary for [Complainant to] continue ….is no longer present” and that the Complainant’s employment would terminate with effect from 30 December 2022 subject to a right of appeal. The GM stated that she considered the dismissal decision was “justified”.

The GM gave evidence in relation to the Employee Handbook and the disciplinary procedure furnished to the Complainant on 21 December 2022. The GM also gave evidence in relation to issues related to parking involving the Complainant in May 2022 after which his delivery route was reassigned to the Dublin region. In that regard, the GM stated that the May 2022 issues gave rise to “friction” with another of the Respondent’s customers and that at the time, she considered the Complainant was “being very unreasonable”.  The GM stated that she spoke with the Complainant at the time and considered they had a “fruitful conversation”.

The GM was cross-examined on her evidence including in relation to the Complainant’s suspension, the investigation and disciplinary process and the Complainant’s concerns that he was not furnished with adequate information prior to the disciplinary hearing such as the name of the original complainant or any original statement of complaint, nor the AO’s email to the GM of 27/10/2022 or any statement from the AO’s colleague/LE. In response to questions the GM stated that she was “surprised and shocked” when she received the AO’s email of 27/10/2022, that she went straight to the AO’s office to discuss the matter and also spoke with the colleague/LE. In this regard, the GM clarified that the colleague/LE had also spoken with the customer’s Manager on 27/10/2022 and that she/GM was informed by LE that the Manager was “irate” but did not wish to put a complaint in writing. The GM stated that she herself did not speak with the customer’s Manager as she considered the AO and LE “had corroborated the complaint”.  After she spoke with the AO and LE, the GM stated that she then spoke with the Respondent’s CEO as she was concerned the Complainant’s behaviour was “not acceptable to represent the company”.

In response to questions about the investigation, the GM stated that she and the CEO met with the Independent Investigator on 29 October 2022. She stated that she did not furnish the Investigator with any letter or Terms of Reference. The GM stated that although she did not provide the Independent Investigator with copy of the AO’s email of 27/10/2022 the content was discussed with him. She stated that the Independent Investigator was “briefed on the case” and was furnished with the Complainant’s letter of suspension. The GM stated under questioning that she did not “feel the need” to obtain the Complainant’s consent for the investigation or his agreement on who would conduct the investigation.  The GM further stated that at the time the Complainant was not communicating with the Respondent. The GM stated that she and the CEO also met with the Independent Investigator after he had completed his report of the investigation. In response to further questions the GM stated that after reading the report of the Independent Investigator she regarded the Complainant’s behaviour on 27 October 2022 as “gross misconduct” and was satisfied the report substantiated the allegations against him. The GM agreed under cross examination that there were no minutes of meetings attached with the investigation report.

In response to questions about the disciplinary hearing the GM stated that she was impartial throughout, that she gave the Complainant an opportunity to pull back from dismissal, that she had considered lesser sanctions as dismissal was the last resort and that no other issues influenced her decision. The GM stated that she could not agree the Complainant would not repeat the incident, that she could not trust him. She stated that no other complaints influenced her decision but that what did influence her was the “bad behaviour” in May 2022. It was specifically put to the GM that the Respondent’s customer involved in the incident of 27/10/2022 had stated in the course of the investigation that the Complainant could return to the customer’s yard “provided that he demonstrated good manners” to which the GM replied that he had not shown this on 27/10/2022. She stated that the Complainant had been advised to phone his Manager if there was an issue with a customer during a delivery. The GM further stated that she did not consider there was any other reason for the Respondent’s customer to make a complaint on 27/10/2022 or refuse a delivery. The GM also clarified under cross examination that there was no disciplinary record against the Complainant in October 2022, that no formal complaint had been made against him in May 2022 and further that the Respondent operated an open door policy as it preferred to talk through and resolve issues at local level.

Witness 3 – Respondent’s Transport Manager/TM

The TM outlined his role as a Manager in the Respondent’s business for appox ten years. He outlined  the training provided to new drivers and that when a new driver starts they are teamed up for a time with an experienced driver. He stated that driver routes vary every day and that generally he sends each driver a text on the night before outlining their deliveries. The TM stated that new drivers are advised to ring him if there is any problem with a delivery and not to get involved in any altercations which can generally relate to logistical issues such as access. The TM stated that he did not receive any telephone call from the Complainant on 27 October 2022 and that he only became aware of the incident on the following day 28/10/2022 after the Respondent’s customer’s telephone call.

The TM also outlined his dealings with the Complainant and another of the Respondent’s customer in May 2022 as a result of which he stated he had no choice but to reassign the Complainant’s route to Dublin. The TM maintained this did not impact on the Complainant’s hours of work as he continued to commence and finish his day from his existing location point.

Under cross examination the TM accepted that the requirement to report any issues during a delivery was not in writing. He stated under cross examination that he “can’t recollect if Ed rang” on 27 October 2022 but also re-stated that he first found out about the incident the following day/28 October 2022 and only then became aware the Complainant had not finished his delivery on 27 October 2022 and had brought the goods back to the warehouse. The TM stated that he was told by the AO about the customer’s telephone call of 27 October 2022. The TM also stated under questioning that he had previously spoken with the GM and the CEO about the issues of May 2022 and that he also spoke with them on 28 October 2022 about the incident of 27 October. The TM stated that he had no involvement in the investigation or disciplinary process and that he was not interviewed by the Independent Investigator.

Witness 4 – Respondent’s CEO

The CEO stated that he first learned of the incident of 27 October 2022 after the AO received the phone call from the Respondent’s customer. The CEO stated that he went down that evening to talk with the AO and his colleague LE. It was clarified that the AO was the CEO’s son. The CEO stated that he read the AO’s email record of the Respondent’s customer telephone call and that he was “alarmed” and “shocked” when he read the email and concerned for the impact on the Respondent’s business.

The CEO stated that from that point the matter was dealt with by the Respondent’s GM, that he had a brief discussion with the GM and was also advised by the GM of the Complainant’s suspension but that he was not involved in that decision. He stated that his next involvement was when he and the GM met with the Independent Investigator on 29 October 2022. The CEO stated that he just listened at that meeting. The CEO stated that he also met with the Independent Investigator after the investigation was completed.

Thereafter the CEO stated that he dealt with the appeals process. The CEO stated that the Complainant was represented at the appeal hearing, that in the course of the appeal hearing the CEO “experienced” a “provocative” attitude on the part of the Complainant who he stated “shouted” at him, but that he afforded the Complainant every opportunity to state his case. The CEO stated that “reluctantly” he confirmed the decision to dismiss the Complainant as he could not trust him to represent the company going forward. The CEO clarified that there was no disciplinary action taken against the Complainant on foot of the incident in May 2022 and that the Complainant was given the “benefit of the doubt” on that occasion. He stated that it was difficult to get good drivers and that the dismissal decision was not taken lightly.

The CEO stated that the Respondent had invested in HR training in order to ensure drivers were given fair process and issues arising were dealt with informally and at an early stage.

The CEO was cross examined on the procedures utilised for the appeal and he was unsure whether it was the 2018 or 2021 iteration of the Respondent’s disciplinary procedure. Under cross-examination, the CEO stated that he remained impartial throughout the process and that although he was shocked when he first heard of the incident, he did not formulate any opinion or verbalise his view. The CEO also stated under cross examination that he considered the Complainant “a difficult employee” – that he “….could drive well but was awkward”. Under questioning the CEO clarified that after speaking with the AO on 27/10/2022 he then confirmed what the AO had stated with LE, that he got LE’s “version” and that she “validated” the story. The CEO stated that he tried to contact the Manager of the Respondent’s customer on 28 October 2022 but didn’t manage to do so.

The CEO was questioned on his meeting with the Independent Investigator after the investigation was completed. He stated that the Investigator outlined who he had interviewed. In response to a question the CEO stated that he formed the opinion at that meeting that the Complainant “was out of order” on 27/10/2022 and was “spinning his own story”. The CEO stated that he could not remember ever receiving any such similar complaint. He also stated that he read the Investigator’s report. In response to a question on the lack of a written complaint from the customer, the CEO stated that this did not raise any “credibility” issues for him and that he “personally felt he had a valid complaint”. He stated that he spoke with the AO on 27/10/2022 and with LE as he “wanted to confirm” what the AO had said, that he got LE’s “version” and that she “corroborated” the AO’s email and indicated that the Complainant had been “irate, abusive, aggressive”. The CEO also stated under questioning that he spoke with the Respondent’s TM on 28 October 2022 and was informed that the Complainant had not contacted the TM on the previous day.

In response to questions about the appeal, the CEO stated that he remained impartial throughout and that he was not influenced by what he had heard up to that point or by any previous issues involving the Complainant – such as relating to May 2022 and/or a petition the Complainant had signed re alleged bullying in the workplace. He stated that he considered the May 2022 issues as “serious” but “resolved”. The CEO stated that he couldn’t remember any documents being exchanged at the appeal stage and that he was satisfied the process was carried out correctly. Under re-direct the CEO stated that the outcome of the investigation did not mean dismissal would automatically result, that he did not like losing drivers, that he did not reach any conclusion re the disciplinary sanction until after the appeal hearing and that he gave the Complainant every opportunity to explain himself.

Summary:

The Respondent submitted that its staff undergo rigorous training. In relation to the parking issues which arose in May 2022 the Respondent stated this resulted in a breakdown in the relationship between the Complainant and the particular Manager of the Respondent’s customer at the time. The Respondent stated that as result of his re-assignment the Complainant “retained a significant amount of animus and resentment”…in respect of that particular Manager and that he “remained discontent with his reassignment….”.  However, the Respondent maintained that the reason for the Complainant’s re-assignment was because of a “business need”.

In relation to the incident of 27 October 2022, the Respondent’s position is that the altercation with the Respondent’s customer was not disputed, that as a result of the Complainant’s behaviour on 27/10/2022 it had lost trust in the Complainant, that the decision to dismiss was not taken lightly but that it was justified, proportionate and reasonable in all the circumstances and particularly given the impact on the Respondent’s business. The Respondent stated that it complied with fair procedures and its own disciplinary procedures in the investigation and disciplinary process. The Respondent submitted that the lack of cross examination did not diminish or limit the fairness of the process and it cited case law to support its position in this regard. The Respondent also stated that it was a small sized entity and that the Complainant did not proffer any witnesses for cross examination.   

The Complainant outlined his duties and background with the Respondent. He stated that he was not provided with any/adequate training and was not furnished with any Employee Handbook. He stated that the first time he was aware of the Respondent’s disciplinary procedure  was on 21 December 2022 the day before the disciplinary hearing and that he was not furnished with the Driver’s Handbook or any Employee Handbook prior to then.

The Complainant outlined the background to his signing a petition with other workers in around March 2022 about alleged bullying in the workplace. He stated that the Respondent failed to deal with those complaints. He stated that the CEO met him on or about 29 April 2022 regarding the fact of his signing the petition.

The Complainant outlined his position with regard to parking his truck in the yard of another of the Respondent’s customers and various issues about parking which arose around May 2022. He  stated that he was not aware of any complaint about the matter and that the first he knew of this was when he read the Respondent’s submission to the WRC. The Complainant referred to his dealings with the TM and GM at the time and that in his view – for no legitimate reason and in the absence of any complaint against him – in or around 6/5/2022 his driving route was re-assigned to the Dublin region. The Complainant referred to his correspondences of 25/7/2022, 19/8/2022 and 17/10/2022 sent to the GM in which he raised various grievances including the lack of reasons for the re-assignment of his driving route. The Complainant stated that he obtained union representation and that notwithstanding a meeting held on or about 19/8/2022 his grievances were never properly investigated or addressed nor was there ever a formal follow up meeting. He stated that a meeting held in December 2022 did not address matters and was focused on potential settlement.

The Complainant outlined his duties on 27 October 2022. He stated that he had two items to deliver to the particular customer, that he drove into the customer’s yard where he had never been before and that he went to the warehouse with the relevant dockets. He stated that he saw three people in the office and that he knocked on the door and said he had a delivery. He stated that he was told that somebody would be out to him after a while. He stated that he was told he was not supposed to come into the warehouse and that he was shouted and roared at. The Complainant stated that he advised the particular staff that he had other deliveries and that he was going to unload his delivery but was told not do so until the staff were “good and ready”. The Complainant stated that one of the staff asked him if he had a problem and that he asked if the person was working for the Respondent’s customer to which the person replied “Don’t you fu**ing come round here” querying his job title. The Complainant stated that he was asked what age he was and that he replied that he was old enough to defend himself. The Complainant stated that he also asked for the manager’s name.

The Complainant stated that after those exchanges he drove out of the customer’s yard, that he rang the Respondent's TM and reported how he had been treated. He stated that he took the stock back to the warehouse where he had picked it up from, that he continued with his other deliveries, that the Respondent’s TM made no further enquiries of him and that he got home approximately 8pm that night. The Complainant stated he was suspended the following day – 28/10/2022.

The Complainant outlined his dealings with the Independent Investigator. He stated he was not furnished with any documentation in advance nor any Terms of Reference, that a suitable interview room was not arranged and that he did not consider the Investigator was actually independent as he was being paid by the Respondent. The Complainant stated that prior to the disciplinary and appeal hearings his union repeatedly sought all documentation including an original written complaint, the records of interviews conducted by the Independent Investigator and that the Manager of the Respondent’s customer be available for questioning - but none of this was provided. The Complainant stated that instead he was only furnished with the GM’s letter of suspension of 28 October 2022, the report of the Independent Investigator and with the Respondent’s procedures on 21/12/2022.  The Complainant stated that he was informed that the Manager of the Respondent’s customer who had telephoned the AO on 27 October 2022 did not wish to put a complaint in writing. In relation to the appeal hearing, the Complainant disputed the CEO’s statement that he shouted in the course of the hearing.

Under cross examination the Complainant accepted that he signed a contract of employment on 23/11/2018. It was put to him that on occasions he didn’t hand in time sheets which he denied. The Complainant disputed under questioning that he objected to being assigned to a different truck or that he caused disruption by changing/removing insurance discs and toll tags and by not leaving keys back in the correct location. The Complainant accepted under questioning that his relocation to Dublin did not alter his commencement or end location but he stated that he started and finished at later times. He took issue with the assertion that he caused difficulty re parking arrangements at the Respondent’s customer site in or around May 2022 and maintained there was always parking issues which continued after he left. The Complainant also disputed under questioning that it was he who wrote the petition but accepted that he had signed it. The Complainant stated that he took his job seriously, that he was prepared to raise issues and that he abided by instructions.

The Complainant was extensively questioned in relation to the incident of 27/10/2022. In his replies he stated that he did not see any sign not to enter the Respondent’s customers warehouse, that he knocked on the door, that he advised the customer’s staff member that he may need a forklift for the pallet, that he was spoken to aggressively, that a staff member was “shouting and roaring” and that he was told the delivery would be unloaded when the customer was “good and ready”. Under questioning the Complainant denied that he was unhappy with the speed of the customer’s response or that he used the words “old enough to take you on” but rather he said he was “old enough to defend himself”.  The Complainant also denied that he spat at any stage. He stated he was being “blackguarded” by the Respondent’s customer’s staff and “had to defend himself”.  

Under questioning the Complainant disputed the nature of the allegation set out in the GM’s letter to him of 28/10/2022. He stated that he would accept that if he had acted as described the Respondent would be entitled to raise concerns given the importance of customer relations and that an employer was entitled to trust an employee 100% - but he strongly denied he acted in the manner alleged on 27/10/2022. It was put to the Complainant that it was a very significant decision for the Respondent’s customer to send him away without making the delivery to which the Complainant replied that he was “never treated” in that manner on any previous occasion. He stated that the delivery docket was “fired back” at him. The Complainant stated that when he started to drive away a man came round and that when he asked his identity the person said he was the customer’s GM and that he asked the Complainant what age he was. The Complainant denied that he asked the staff member his age and that he spat at any stage. The Complainant maintained under questioning that he did not create the situation which arose in the Respondent’s customer’s yard that day.

The Complainant reiterated under questioning that he telephoned the Respondent’s TM when he came out of the customer’s yard on 27/10/2022 and explained that he had had a problem and “got hassle”.  He stated that he considered it was then a matter for the TM to resolve matters. The Complainant further stated that the TM told him to bring the delivery back to the warehouse.

Summary:

The Complainant stated that he was unfairly treated in May 2022 particularly as regards the re-assignment of his driving route and lack of reasons therefor. As regards his dismissal, the Complainant stated that the Respondent failed to take into account the Investigation Report findings, that the alleged spat by the Complainant was not confirmed and that there was no objection from the Respondent’s customer to his/the Complainant returning to the particular customer’s yard to make deliveries. 

It is the position of the Complainant that the investigation and disciplinary process did not comply with fair procedures, that the process was not impartial, that he was not furnished with the relevant documentation including an original written complaint, the AO’s email, the Investigator’s interview notes or afforded any opportunity for cross examination. The Complainant also submitted that the Respondent was influenced by the matters involving the Complainant which had arisen prior to 27/10/2022 – although these were not put to him as part of the disciplinary process. He stated that in the absence of any previous disciplinary record, the dismissal decision was not justified by any substantial reason and was disproportionate.

CA-00055971-005

The Complainant stated that he was paid subsistence amounting to €26/day or €130/week in addition to his basic weekly wage. This complaint concerns the non-payment of the subsistence payment during the period of the Complainant’s suspension – ie from 28 October 2022 until 30 December 2022/date of dismissal. The Complainant argued that he was always paid the subsistence whether he was actually at work or not and that it was paid to employees on annual leave. The Complainant stated that the subsistence payment was not dependent on hours worked and that it constituted properly payable wages in accordance with the terms of Payment of Wages Act [1991-2017].  The Complainant further stated that the non-payment of the subsistence constituted a penalty, that its loss had a direct financial impact on him and was an unlawful deduction. The Complainant stated he was owed approximately €1,326. 

The Respondent stated this claim could not succeed as the subsistence payment was a tax-free expense and did not constitute properly payable wages pursuant to the Payment of Wages Act [1991-2017]. The Respondent stated that the subsistence payment was not based on vouched expenses/receipts and was paid to mitigate costs incurred by an employee during the working day. The Respondent submitted that the subsistence payment was not justified or required when the Complainant was not actually at work and that it has not been paid to any employee during annual leave since 2022.  

CA-00055971-007

The Complainant stated on termination of his employment he was paid four days for outstanding annual leave – less subsistence payment – which amounted to a total of €444 – ie €111/day. The Complainant stated that he should have been paid for five days annual leave instead of four as he was forced to take the day of 9/9/2022 as annual leave to see his GP. This the Complainant stated was due to his having been reassigned to the new driving route which was further from his home. The Complainant stated he was seeking €111 for the extra annual leave day and €130 for five days subsistence payment – @ €26/day for the five annual leave days bringing the total owed to €241.

The Respondent stated the Complainant had sought to take the 9 September 2022 off without pay in order to attend his GP. The Respondent stated that this was not approved by the Complainant’s Manager who indicated at the time that the Complainant could take annual leave on the basis that he had an unused accrual of annual leave. As the Complainant was paid annual leave for 9/9/2022, the Respondent maintained that he had been fully paid for all his outstanding annual leave entitlement and further, that he was not entitled to subsistence payment during annual leave.

CA-00055971-008

The Complainant referred to his letter of dismissal of 23 December 2022 which advised that his employment would terminate with effect from 30 December 2022. The letter also advised the Complainant of his right to appeal this decision. The Complainant stated that his dismissal was not a case of gross misconduct nor was it a summary dismissal. He stated he was entitled to 2 weeks minimum notice from 30 December 2022 which he was not paid – ie €1,370 being two weeks pay inclusive of subsistence @ €685/week.

The Respondent disputed that the Complainant was entitled to any notice in circumstances where he was dismissed for gross misconduct. The Respondent reiterated its position that the subsistence payment did not constitute reckonable pay.

CA-00055971-001

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, that it acted in accordance with its disciplinary procedure and/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 any 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 the correct approach 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 conclusions:

1)     I accept the Respondent’s position as regards the potential for its business to be seriously impacted as a consequence of friction with a customer at the coalface of a delivery. In my view therefore, it was not unreasonable for the Respondent to have treated the customer’s complaint of 27/10/2022 very seriously and to have moved to suspend the Complainant pending an investigation and disciplinary process;

2)     The Respondent submitted that it was a small entity and in terms of its management structure I accept this – since it seems to me the key persons were the Respondent’s GM and CEO. For that reason the Respondent properly moved to appoint an Independent Investigator. The question for me is whether the investigation and disciplinary process adopted by the Respondent afforded the Complainant adequate fair procedures. In this regard, I have reached the following conclusions:

a)      That both the GM and CEO formed a view from the outset – arising from their discussions with the AO and LE on 27/10/2022 – that there was justification for the complaint. In this regard I note the GM stated in her evidence that she spoke with the AO and LE as she wished “to distinguish tone and what happened…..get a feeling of how irate….Manager was…” and whether it was unreasonable and unprofessional of the Complainant to get involved in such an altercation. The GM also stated in her evidence that there would have been no reason for the customer to have made a complaint. In his evidence the CEO stated that after speaking with the AO on 27/10/2022, that he then confirmed what the AO had stated with LE, that he got her “version” and that she “validated” the story. In addition, on the following day – 28/10/2022 the CEO spoke with the TM and was advised the Complainant had not rang him on 27/10/2022. From my consideration of these interactions I am – on balance – of the opinion, that the GM and CEO formed an early view – prior to the instigation of the investigation and disciplinary process - that the Complainant had interacted in an unacceptable manner with the customer on 27/10/2022 and had demonstrated “bad behaviour”;

b)     The purpose of a thorough and transparent investigation and disciplinary process is to ensure that the person against whom complaints have been made has every opportunity to directly address and potentially counteract any statements which may influence the decision makers. From the evidence and submissions I am not satisfied the Complainant was fully or properly afforded this opportunity. Specifically, the Complainant was not provided with the AO’s email or with an opportunity to question the AO notwithstanding that the GM and CEO both considered it important to speak with the AO directly after his phone call from the customer on 27/10/2022. Similarly the GM and CEO spoke directly with LE whom the CEO stated “corroborated” the complaint – but no such opportunity was afforded the Complainant. The Complainant was not afforded an opportunity to question the TM who had spoken with both the GM and CEO on 28/10/2022 – notwithstanding the significant conflict between him and the TM as regards the telephone call of 27/10/2022. Nor was the TM interviewed by the Independent Investigator. The Respondent’s customer’s manager – who had not submitted a written complaint – was interviewed by the Independent Investigator but no notes of this interview were provided to the Complainant so that he may respond prior to the completion of the investigation report. Indeed the Complainant was not provided with any interview records arising from the investigation process;

c)      Of particular significance in my view, is that both the GM and CEO met with the Independent Investigator before and after the investigation was completed. Whilst there may have been some legitimacy in the GM’s position that the Investigator had to be briefed – in my view this could have been done in writing and the CEO did not need to attend. However I cannot see any justification for the meeting with the Investigator after the completion of his report – why was this necessary when the written report had been completed? The GM stated she was satisfied the investigation report “substantiated” the allegations as to what occurred on 27/10/2022. The CEO stated that he formed the opinion at the post investigation meeting with the Independent Investigator that the Complainant “was out of order” on 27/10/2022 and was “spinning his own story”.  The fact of that meeting having taken place was not notified to the Complainant, no record of the meeting was kept or provided to the Complainant nor was he invited to meet with the Independent Investigator after the investigation. In all the circumstances, I am concerned that this post investigation meeting between the Independent Investigator and the two key decision makers lacked transparency and justification and for that reason I am persuaded that it had a prejudicial effect against the Complainant;

d)     The Respondent stated that its decision to dismiss was solely based on the incident of 27/10/2022. There was considerable evidence adduced in the course of the hearing about earlier issues involving the Complainant particularly in or around May 2022. The Complainant was aware of these issues at the time. All things considered, I accept the Respondent’s position that whilst in May 2022, it was unhappy with the Complainant’s conduct, nevertheless it considered issues addressed and concluded at that time. The Complainant therefore had an unblemished disciplinary record up until October 2022. Given that unblemished disciplinary record and the conflict as to what occurred in the customer’s yard on 27/10/2022 and the lack of cross examination to test the extent of that conflict, I am of the view that the decision to dismiss was disproportionate. I consider there was insufficient consideration on the part of the Respondent to the application of a lesser sanction and/or other measures such as the development of a written protocol or training to address such difficult delivery situations;

e)     As regards the Respondent’s disciplinary procedures, I consider that both iterations of the procedures were similar and that the Complainant was not prejudiced by the apparent confusion as to which procedure was utilised. Further I am persuaded by the Respondent’s evidence and submissions that the Complainant was furnished with an Employee Handbook when he was initially employed. In this regard, I note the Complainant’s signed contract of employment of 23/11/2018 and his signature on the Staff Acknowledgement Form on 15/10/2018. At the very latest he was furnished with the disciplinary procedures prior to the disciplinary hearing and did not seek an adjournment.

In light of the foregoing, I am not satisfied the Respondent has discharged the burden of demonstrating that the Complainant’s dismissal was procedurally fair or proportionate. That being said, from my consideration of the accounts of the exchanges with the Respondent’s customer on 27/10/2022, I consider the Complainant contributed to the escalation of matters. In the course of the exchanges that day the Complainant advised the customer that he was “old enough to defend himself” and that he “had to defend himself”. In my view these statements indicate contribution by the Complainant to an escalating and/or confrontational situation and that the Complainant appeared to be viewing the exchanges with the Respondent’s customer through the personal lens of his own position as against the position of the Respondent on whose behalf he was employed to make the delivery.

CA-00055971-005

Section 1 of the Payment of Wages Act [1991-2017] states as follows:

““wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including –

(a) “any fee, bonus or commission, or any holiday, sick and maternity pay, or any other emolument, referable to [the employee’s] employment, whether payable under [the] contract of employment or otherwise, and

(b) any sum payable to the employee upon….termination….”;

Section 5(6) of the Payment of Wages Act [1991-2017] deals with the non-payment of properly payable wages as follows:

             “5(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217), the Employment Appeals Tribunal took the word “payable” to mean “properly payable”, consequently it was not simply a matter of what may have been paid from the outset but all sums to which an employee is properly entitled.

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish that wages were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

Citing the case of Marek Balans v Tesco Ireland Limited [2020] IEHC 55, the Labour Court in X Internet Unlimited Co V  Gary Rooney [Decision No PWD269], noted the requirement to firstly establish that wages were properly payable within the definition set out in the Act – ie “…..any sums payable to the employee by the employer in connection with his employment”. In that case an issue for consideration was that the bonus scheme was deemed to be discretionary. 

The Complainant’s evidence was that prior to his suspension he was paid the subsistence payment on an uninterrupted basis - including whilst he was on leave or not working – and this was not disputed. Whilst the Respondent stated that the subsistence payment was to cover expenses incurred during the working day – there was no definition or clarity as to what such expenses were nor was there any requirement that any such expenses be vouched. In all the circumstances and having considered all the evidence and submissions, I find the subsistence payment could reasonably be comprehended within the definition of wages set out in the Act – ie a sum “…. Payable to the employee by the employer in connection with his employment”. Accordingly I find that during the  course of his employment the subsistence payment was a properly payable aspect of the Complainant’s wages and that its non payment during the period of his suspension and annual leave constituted an unlawful deduction.

CA-00055971-007

Section 19 of the Organisation of Working Time Act [1997-2020] provides as follows:

19.—"(1)…..an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

I 8 per cent. Of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks);

Provided that if more than one of the preceding paragraphs is applicable……

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3)…….

(4)…….

(5)…….

(6)…….  “

Section 20 of the Organisation of Working Time Act [1997-2020] provides that:

20.—"(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject —

(a) to the employer taking into account –

(i) the need….to reconcile work and any family responsibilities,

(ii) the opportunities for rest…..,

(b) the employer having consulted the employer…..not later than 1 month before….., and

(c) to the leave being granted –

(i) within the leave year….,

(ii)……

(iii)….

(2) The pay in respect of an employee’s annual leave shall –

(a)….

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c)……

(3) Nothing in this section…..

(4) In this section “normal weekly rate” means…..”

Section 20 of the Act grants an employer authority to determine when annual leave is taken subject to certain provisos. Whilst the Complainant furnished a medical certificate dated 1/9/2022 certifying that his GP appointment was due on 9th September, I do not consider this an illness certificate in respect of 9/9/2022 as per Section 19 (1A) of the Act and no evidencewas adduced before me to suggest otherwise. Having considered all the evidence and submissions and having regard to the foregoing legislative provisions, I am of the view that the Complainant was paid for five annual leave days which was his due entitlement under the Act.

However, in accordance with my finding under CA-00055971-005 I consider the Complainant was entitled to be paid the subsistence allowance for the five annual leave days owed to him as this constituted a properly payable aspect of his wages.

CA-00055971-008

Section 4 of the Minimum Notice and Terms of Employment Act [1973-2017] provides as follows:

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

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

a)     ……

b)     if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

c)      ……

d)     ……

e)      …..”

There is no dispute that the Complainant was employed from October 2018. His termination followed an investigation and disciplinary process and the Respondent’s evidence was that it only reached the decision to dismiss after the conclusion of this process. The Respondent stated that it also considered whether lesser sanctions would be appropriate but decided against. In these circumstances, I see no basis for denying the Complainant his statutory notice period. Accordingly, I find the Complainant was entitled to be paid two weeks statutory notice in accordance with the provisions of the Act.

CA-00055971-001

For the reasons outlined this complaint is well founded.  I decide that compensation is the appropriate remedy. 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 ….”. Accordingly, I am obliged to take account of the measures adopted by the Complainant to mitigate his losses. In this regard I note the Complainant’s statements and copy letters that he endeavoured to obtain work after his dismissal, that he obtained a fixed term job from 16/1/2023 – 10/5/2023, further work in June 2023, a permanent job with effect from 16/8/2023 and that altogether he was out of work for thirteen weeks.

The Complainant’s gross weekly pay was €685 inclusive of the subsistence allowance. Taking all matters into consideration including the element of contribution on the Complainant’s part, I hereby award him the amount of €6,750 gross pay. I consider this amount just and equitable to compensate the Complainant for his loss of earnings arising from the unfair dismissal. This amount is subject to such statutory deductions as may apply.

CA-00055971-005

For the reasons outlined this complaint is well founded.  Based on the subsistence payment of €130/week, I hereby award the Complainant €1,170 for the unlawful deduction of the subsistence payment during his 9 weeks suspension  - ie from 28/10/2022 to 30/12/2022. 

CA-00055971-007

For the reasons outlined this complaint is partly well founded.  Based on the subsistence payment of €26/day, I hereby award the Complainant €130 for the five annual leave days.

CA-00055971-008

For the reasons outlined this complaint is well founded.  Based on the Complainant’s gross weekly pay of €685 inclusive of the subsistence payment of €130/week, I hereby award him €1,370 – in respect of two weeks statutory notice.  

Unfair Dismissal; Wages, Annual Leave, Minimum Notice