ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051162
Parties:
| Complainant | Respondent |
Parties | Thomas Deevy | Kilkenny Limestone Quarries Ltd. |
Representatives | Rachel Hartery SIPTU | Lisa Conroy Construction Industry Federation |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00062668-001 | 08/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00062668-002 | 08/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00062668-003 | 08/04/2024 |
Date of Adjudication Hearing: 08/04/2024, 25/02/2025 & 22/04/2025
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.
The complainant and another witness for the complainant, together with four witnesses for the respondent undertook to give their evidence under affirmation. Cross examination was facilitated.
At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”. |
Summary of Complainant’s Case:
CA-00062668-001 Unfair Dismissal The complainant submitted that he was unfairly dismissed by the respondent. He submitted that he had a workplace accident due to his workstation being unsafe and the equipment being incorrectly calibrated. An accident form was completed, and he was medically treated off site. At a later stage when he saw the accident report form, he had submitted that it was not the same one that he had completed as certain information was omitted, and he did not believe that the signature on the form was his. The complainant submitted that he raised this with his employer and had no stage was he offered a new form to complete, instead he was met with hostility, and his concerns were not accepted or believed. The complainant submitted that he went through the company's grievance procedure regarding the unsafe workspace, but his complaint was not upheld. Instead, management insisted his grievance was malicious and he was dismissed as a result of this. The complainant submitted that the dismissal was completely unwarranted, unfair and unjust. After 20 years of unblemished service, he was dismissed, and the respondent relied upon the evidence of a handwriting expert that they employed to commence disciplinary proceedings. It was submitted that the respondent had made-up its mind and simply went through the motions of procedures but never moved from their original opinion. The complainant submitted that if the accident report form was ambiguous, a new report form should have been completed. However, this option was never offered to the complainant
CA-00062668-002 Payment of Wages The complainant submitted that as a result of finding a genuine grievance as malicious he was moved off shift work and this gave rise to a loss of 20% shift rate for 14 weeks, this gave rise to a reduction in pay of €1774.50.
CA-00062668-003 Minimum Notice Given a 20-year service record the complainant submitted that he was entitled to at least 8 weeks’ notice, amounting to €5616.
Oral evidence: The first witness for the complainant was the complainants shop steward. He attended the investigation/disciplinary meeting with the complainant. He was asked was there anything to add to the original grievance but responded that the signature was not the complaints signature. It was put to him that an accusation was made against somebody in the company, but he replied that there wasn't an accusation made. He noted that he didn't think the investigation and subsequent procedure was conducted in an open fashion and that it amounted simply to a box-ticking exercise. He stated that in the third meeting with the respondent the respondent was trying to badger a name out of him as to who might have put the signature on the accident report. Under cross examination he stated that it came up briefly that the report could have been falsified with the use of AI. He stated that the atmosphere in the workplace was fairly ok, however he noted that there has been a toxic environment in the last 10 or 12 years which was possibly counterproductive. He stated that he felt that all stages of the investigation and disciplinary process were completed but that they were a box ticking exercise which he felt was disingenuous. The second witness for the complainant, also from his union, noted that at the disciplinary meeting, the atmosphere was OK. However, he noted that at the appeals meeting, the demeanour of the respondent employee who conducted the meeting was badgering, trying to ascertain who wrote the report if it wasn't the complainant. He noted that he never received a minute of the meeting and that he never shared his minute of the meeting with the company either. Under cross examination he noted that a letter was sent in to the respondent after the dismissal with additional detail. The complainant gave his evidence on the third day of hearing. The complainant outlined that he previously had a grievance with a supervisor. He said that this was not investigated and that no outcome was arrived at for a formal grievance in that case. He said that he felt the company wanted him gone. He'd had an accident putting a slab on a pallet and hurt his back and he completed an accident report form. He stated that he filled out the form on the day of the accident and put a box around the writing of his supervisor. When he was shown the report form including what was alleged to be his signature there was no box around the written record of his supervisor. He then said to his employer that the form was forged. He stated that the form was not his but that he was never given a new form to complete. The complainant stated that he returned to work but that details regarding the payload of various pieces of equipment had been rubbed off with a grinder. He raised this issue and was removed from his evening shift, which gave rise to a loss of 20% of his earnings. He stated that no grievance was lodged but he was formally suspended on 12 December2023 with reduced pay and was let go. The complainant stated that he was never informed that the company was using a handwriting expert until 12 December and stated that he never accused anyone of forging his signature but simply stated that this was not the accident form he had signed. Under cross examination he was asked about the formal grievance that was never investigated and stated that it was a grievance against his line manager who had abused him. He confirmed that there was an accident, and he was not being paid as he had previously been, he noted he was aggrieved but did not lodge any grievance. He raised the issue verbally, that the signature was not his and that parts of the form he had completed were not there anymore and had been omitted. He did not accuse anybody. He was invited in to give a statement but realised what that statement meant and did not do so. He stated that the grievance procedure concluded, and he was put on suspension. He was provided with the graphologists report on 12 December but was never given a chance to engage with the expert regarding the report. He confirmed he was not disciplined for the workplace accident but that the disciplinary procedure was a tick box exercise because his employer wanted him gone. He stated that there was no fairness involved in the procedure. The complainant confirmed that he brought representation to the meetings and confirmed that he was told that the disciplinary proceeding could lead to his dismissal. He confirmed that the appeal was held by the highest person possible who abused him, told him that he was misinformed and he noted that this person wanted him gone. The complainant stated that the respondent’s decision was predetermined and that the procedure ticked every box. He also stated that he raised allegations regarding the suction pads which had been tempered with, but this was ignored. Closing arguments: The complaint submitted that the dismissal was predetermined from the start. There were procedural flaws with inappropriate personnel carrying out investigations that required independence and an unbiased view. The complainant submitted that the respondent’s decision was not justified and was warranted particularly a summary dismissal with a long-serving employee who had 20 years with the company. The complaint submitted that the case was predetermined from the start and nothing that the claimant said could have said would have made any difference to the outcome of the process. The complainant relied on Phillip Smith v RSA Insurance Ireland limited UD1673/2013 where the outcome stated that “having regard to all of the foregoing, this tribunal is satisfied that from a very early stage in the investigation or perhaps even before it, the claimant's fate was determined by the respondent. The respondent then went on a fact-finding exercise to justify its predetermined decision.” The complainant submitted that this is evidenced by the covert investigation into the handwriting and the total disregard for the evidence presented to the respondent with the deliberate action of changing the payload weight to cover up the reason for the complainant’s accident. The complainant submitted that members of management made the decision to terminate the complainant's employment long before the investigation even concluded. The complainant also relied on UD303/2014 Bus Eireann v Danlami Umar. That case succeeded and it was concluded that “to suggest that anyone receiving such a complaint is immune from forming and any initial impression is unrealistic. What is important, however, is whether any impression formed, evolved into a predetermination of the issue. Having considered the totality of the evidence heard, the documentation received, and procedures followed by the services manager, the tribunal concludes that there was a significant element of predetermination from the outset such as to constitute a fundamental one fatal flaw in the entire process and which renders the dismissal unfair.” The complainant submitted that it is obvious and evident that the dismissal was predetermined. The (named) manager demonstrated this in his account of what occurred in the accident report. He places blame squarely on the complainants’ shoulders and noted that it was an entirely work area. This makes no sense as previously stated the accident was not a trip and fall it was directly caused by an incorrect weight used for the suction of stone. It is nonsense that blame is placed on an untidy work area this demonstrates the initial pre-determined position of the respondent. The complainant also relied on the case of Sharon Timmons v Carlow Women’s Aid UD1087/2015 where it was stated that “the tribunal believes that the board had pre-determined that the claimant should be terminated. This view is supported by the manner in which the disciplinary was conducted and the decision to terminate arrived. The process was fundamentally unfair and the sanction (if one was warranted) was disproportionate.” The complainant also relied on the case of Nutweave Ltd. T/A Bombay Pantry v Rajesh Yadav UDD1623 Where the chair of the Labour Court concluded as follows: “finally, the court is of the view that the sanction of summary dismissal would have been wholly disproportionate even had the allegations actually raised against the complaint had been upheld following a fair and objective disciplinary process. It follows that such a sanction is absolutely right justification having regard to the court findings in relation to the manifestly unfair manner in which the disciplinary issues emerged and were treated with in this case”
Mitigation of Loss: In relation to the complainant’s evidence of his mitigation of his losses, he found it extremely difficult to secure work he applied continuously from his dismissal in January 2024. He did manage to secure agency work from September 2024, but it was noted that the employment is not secure and is temporary in nature. The complainant asserted that not being able to secure references from the respondent was a major blocking point for him. He engaged with the local employment services and has availed of any adult training including safe-pass, renewed his forklift licence and carried out professional progression plans to assist in job search. Achieving employment was difficult and he applied for jobs outside of his normal skill set. Evidence of his job search was provided to the hearing and outlined in documentary form with email showing the vast range of jobs which he applied for and ultimately was unsuccessful being appointed to. |
Summary of Respondent’s Case:
The complainant was employed as a General Operative with the respondent from 4 October 2004 to 19 January 2024 when he was dismissed. He made a formal complaint on 17 October 2024 relating to his signature on an Accident Report Form following an alleged incident on 22 August 2023. He alleged that the signature on the Accident Report Form was not his. CA-00062668-001 Unfair Dismissal The respondent submitted that that initially during the grievance procedure the complainant verbally made allegations of fraud and forgery on the part of his supervisor. Throughout the grievance process this changed, and the complainant then stated in his grievance meeting that his supervisor had access to the minutes. The respondent submitted that they drew an inference from this. The respondent submitted that a thorough investigation followed the receipt of the complaint. This included interviewing witnesses including the complainant’s supervisor. The respondent submitted that it paid a substantial fee to a professional handwriting expert to investigate the allegations of forgery on the basis of the complainants’ allegations. The respondent submitted that alongside this grievance, the Health and Safety Manager carried out a parallel investigation regarding allegations made by the complainant regarding Health and Safety matters. On 13 December 2023, the complainant received the report into the grievance raised by him. The outcome from the handwriting expert stated that it was his “professional opinion that he “find it strongly probable that the author of the comparison signatures”. The respondent submitted that on this same date, the Quarries Manager wrote to the complainant following the outcome of the grievance process. He was informed that his complaint was deemed to be unfounded and therefore possibly malicious. The complainant was invited to meet with him to formally respond to this allegation, the meeting was ultimately scheduled for 21 December. The complainant attended on this date. The complainant was placed on paid suspension pending the outcome of the disciplinary process and was informed of this in writing. The respondent submitted that during the investigation meeting the allegation was put to the complainant that “his allegation that the Company, or a representative of the Company, forged his signature on an Accident Report Form, was deemed to be malicious, based on the evidence of his supervisor and a handwriting expert.” The respondent submitted that the complainant in this meeting stated that he did not agree with any part of the report and continued to insist that it was not his signature on the report. When the result of the handwriting expert was put to him, the complainant suggested that the respondent had potentially used AI. The respondent submitted that on 10 January 2024, the complainant was issued with a disciplinary investigation report. He was invited to attend a disciplinary hearing. In advance of the hearing the complainant was informed that the purpose of the hearing was to allow him the opportunity to respond to “An allegation of making a malicious grievance against the Company, or a representative of the Company, regarding forging of your signature on a Company Accident Report Form.” In his disciplinary invite the complainant was informed of his entitlement to bring a fellow employee or trade union representative. The complainant was warned that this matter could be considered gross misconduct, and disciplinary sanctions could be up to and including his dismissal. The complainant attended a disciplinary meeting accompanied by a union representative and his shop steward. The meeting was held by the Operations Manager. Throughout the course of this meeting the complainant continuously stated that the report in question was not the one he signed and that someone else must have signed it. Conversely however, the complainant claimed that he was not accusing the company or any person or signing the document in his name, when it was put to him how serious an allegation of forgery was. The complainant attempted to deflect from his own allegations of fraud by accusing the respondent of data protection breaches and questioning the existence of Health & Safety reports. The Operations Manager provided the complainant with a written confirmation of his termination on 26 January 2024. The confirmation cited that the complainant was dismissed due to a breach of trust following serious allegations against the company which were found to be malicious. The respondent confirmed to the complainant that this was considered to amount to gross misconduct. He was notified of his right to appeal. The respondent submitted that the complainant utilised his right to appeal on that same date. In his appeal letter, he continued to submit that the report that the Accident Report Form was not the report that he originally signed with his supervisor and that the signature on the form was not his own. He was invited to attend an appeal hearing on 26 February 2024. The respondent submitted that in this meeting the complainant brought no new information to the table. He continued to assert that the report sent to him was not the report he signed, and that information was missing. The respondent submitted that that they considered alternatives to dismissal, however, given that this was considered to be an egregious breach of trust, the decision to dismiss him was upheld.
CA-00062668-002 Payment of Wages The respondent submitted that there was no contravention of the payment of Wages Act.
CA-00062668-003 Minimum Notice The respondent submitted that given the nature of the dismissal and the finding of gross misconduct, no notice payment was due under the legislation.
Oral evidence: The first witness from the respondent was the Human Resources officer. She stated that she was no longer an employee of the respondent and that she had 10 years HR experience. She stated that she looked through the accident report form in order to assess the sick leave application for an occupational injury. It was decided that sick leave would not be paid. She stated that there was a sign off or appeal, but no appeal was received in relation to the decision. The witness stated that there was a verbal grievance raised by the complainant in relation to his signature and the content of the Accident Report. The driver’s licence was used by the company as a comparison document for the complainant's signature. The accident report and the driver’s licence were sent off for document analysis by a handwriting expert. Arising from experts’ assessment the grievance was not upheld, and it gave rise to a wider matter around the general forgery of a signature. The grievance was found to be malicious in nature. The complainant was suspended with pay but no shift allowance was paid as part alt the process. Under cross examination the witness confirmed that the Health and Safety Manager compiled a health and safety report. She noted that there were recommendations made in the report but that the complaint was certified absent from before the production of the report. She confirmed that the recommendations were there but were not authorised to be actioned upon. The witness did not accept that occupational injury time is payable in all cases. She noted that the doctor the respondent used to is also a local GP and that the complainant had to pay for the doctor's report himself. Ultimately the recommendation was against the complainant receivine the occupational injury payment. The witness confirmed that the grievance was made verbally but the grievance was made at a minuted meeting on 17 October2023. The cross examination of the witness continued on the second day of hearing. She gave an overview at the outset that she had no role in the health and safety investigation and but noted that there was no issue originally with the accident review which was only raised as an issue on 28 October. She confirmed that no written grievance was ever made. As regards the handwriting, she knows it that the documents were brought to a graphology expert to assess the signatures. He was provided with 58 sample documents for comparison. It was confirmed that the complainant had no involvement or notice that the handwriting expert was involved. His conclusion was that signature was most probably the complainant, the witness considered that this amounted to a strong probability that the complainant had signed the document. It was put to the witness that the complainant had been denied sick pay who was removed from shift work and that he was suspended however she clarified that he was not already on suspension. She was asked why not leave it there the complaint was unfounded. She noted that the complainant accused somebody of forging his signature, accused his supervisor in the meeting of 12 December. It was put to her that there was no evidence other than the oral evidence being given, there was no record of the meeting and that there was only a verbal accusation. The witness was asked who she consulted about escalating the matter. The witness was asked why the complainant was denied sick pay by the company and replied that there was a panel to consider occupational illness pay so let's stop it was the panel's opinion that the accident wasn't as genuine as it sounded. The witness confirmed that she was a member of the panel, and the panel formed an opinion that it was not a genuine accident. The second witness for the respondent was the queries manager. He was one of the investigations officers who looked at the grievance. He confirmed that he did not work directly with the complainant. He stated does he had no knowledge of the accident prior to the grievance, and he was asked what allegation he was investigating. He noted that he was investigating the grievance that the form was not completed by the complainant. He stated that he met with the complainant and noted that the complainant did not agree with what was contained in the accident report form. He said that it wasn't his signature and that he had also put boxes around text on the form he completed. The witness stated that the complainant suggested that this document might have been created using AI. He noted that he laughed at this, and he felt that the complaint made was malicious. He forwarded on his recommendation which was to suspend the complainant with pay. The witness stated that he gave no consideration to the use of AI as his idea was that AI dealt with video not a signature. As to the issue of whether he considered whether the machinery had been tampered with he said he did not take this into consideration. Under cross examination the witness confirmed that he didn't deem the grievance malicious, but he just accepted that it was malicious grievance. When asked did he follow up on anything he said that he did not. He stated that he did not receive a copy of the handwriting report but relied on the HR person's decision. In answer to the question was the meeting minuted, he stated that perhaps it was mandated in his diary. He was asked whether he relayed issues to the complainant to rebut any of the issues. He was asked whether he interviewed any of the complainants’ colleagues regarding the allegations that machinery had been tampered with but stated that he didn't, he simply asked the complainant’s line manager who said that that was not the case. He stated that he took a break for about 15 minutes and then made his decision, on the day of the investigation. The third witness for the respondent was the operations manager. He acted as the disciplinary officer. He noted that he didn't work directly with the complainant, but he stated that he knew that there had been an accident and a grievance arising. He confirmed that the complainant was accompanied to the meeting. He noted that during the disciplinary meeting he had great difficulty bringing the conversation back to the allegation issue as the complainant repeatedly returned to the health and safety investigation and two issues of GDPR. He stated that the company would take the falsification of a document very seriously as it is key to the company survival and very damaging to the reputation of the company. He stated that the complainant pointed out to him that the document must have been falsified and there must have been a different report. He stated he was not accusing the company, but the document was not the one he had signed. He said that the complainant noted that the supervisor sat opposite him when he completed the accident report form. He noted that perhaps the complainant had created a toxic environment as a result of making the grievance that he made, it was not the other way round. The witness noted that the company was now part of a Belgian multinational and that it had to be open and transparent on everything. When asked who made the decision to dismiss the complainant the witness confirmed that he made that decision. He stated that given the seriousness of the situation there were three pieces of information pointing to the guilt of the complainant. He stated that he considered that the behaviour amounted to gross misconduct and he felt that there was a total loss of trust in the complaint. He clarified that the behaviour that he referred to was that he believed that the grievance was a malicious allegation and about the complainant set out to cause serious harm to the company. When asked were any lower sanctions considered, he confirmed that they were but that he came to the conclusion the breach in trust overrode everything else. He was asked how the decision was related to the complainant and noted that the complainant was invited to a further meeting where a letter was read out to him regarding his dismissal. He noted that the complainant’s approach to the meeting was distraction and that there was no progress made on new information in relation the gross misconduct or in relation to mitigation circumstances regarding his behaviour. The witness stated that the decision was not pre-determined and that he took a few days to consider the decision. He stood by his decision as reasonable and noted that there were three pieces of solid information in front of him. It was put to the witness that there was some inference that the dismissal was as a result of it health and safety incident but the witness confirmed that he had never dismissed anyone for a health and safety incident. Under cross examination the witness stated that he had some research to do to make his decision. He spoke to the line manager and questioned him thoroughly. He stated that he couldn't remember when he spoke to the line manager but that it was before he spoke with the complainant, and he accepted what he said. He repeated that he accepted the manager's version in good faith. He also said that he accepted the complainant’s version in good faith but that a number of people were present when the complainant made a verbal allegation that his signature had been falsified on the accident report form. The witness said that the second important point that he took into consideration was the signature analysis. He was given to understand that this was achieved on a scale of one to seven where seven is 100% certain that something happened and that in the case of the analysis of the complainant signature it was given a six out of seven where it was considered strongly probable that this complainant signed the form. He stated that it was his understanding that the handwriting report had been with the respondent for a number of weeks, but he was only just involved with it as part of the disciplinary process. He stated that he took a few days to make the decision, perhaps two or three days over a weekend and he considered giving a written warning, but not anything else. He stated that he looked at the seriousness of the issue, took into account the complainant’s length of service and the fact that he would have to find work elsewhere. He stated that the complainant didn't stand out as either good or bad during his period of service. He confirms that he did not take health and safety or any accident records into account. However, he concluded that dismissal was the only appropriate option. The witness stated that he didn't accept the union's efforts to “fuzzy the waters” as amounting to mitigation. He stated that at the moment the respondent are short of employees and it made no sense to let the complainant go if another option was available. It was put to him that the complainant was trying to point out the flaws in the investigation and the witness noted that he considered it GDPR, etc., if they were going to be in some way substantive, he would have considered them and taken them into account. However, he stated that he couldn't see the connection between GDPR issues and where they were at that stage. He stated that the issue of somebody changing the weights noted on machinery was unrelated to this investigation. He was asked whether he ever consider the possibility that the line manager was wrong, and he said yes he did consider it but he said somebody could have gotten fired over it. He was asked who he was alluding to but didn't provide a clear answer. Under re-direction he was asked whether the complainant or his representative had anything to say about the actual allegation and whether anything was given in mitigation of the allegation. He stated that he was hoping there might have been mitigating circumstances but that no reason was given. The fourth witness for the respondent was the General Manager. He stated that he had very little knowledge of the proceedings before it arrived at his stage, the appeal process. He reviewed a file which contained numerous documents. He stated that the complainant wanted to appeal his dismissal on the basis that he didn't sign the accident report. He confirmed that he met with the complainant who was accompanied by his union representative. He stated that when reviewing the accident report he didn't see anything in it that would disadvantage the complainant, it described what happened on the day of the accident. He looked at the merits of why or who would want to sign it if the complainant did not do so. He concluded that there was no benefit to the company or any individual in putting the complainant’s signature on the complaint form. He confirmed that he didn't take AI into consideration as there was no suggestion put to him as to who had signed the form. He confirmed that he was shocked that this had escalated so high as there was nothing in the signed report that would have put the complainant in a bad light. He stated that the complainant would not put anything in writing. He noted that the meeting was tense, in that the complainant was not forthcoming with anything that might serve to overturn the decision to dismiss him, he simply kept repeating that he did not sign the report form. The witness stated that he considered other options but felt he had no choice but to uphold the decision. He also mentioned that there is no guarantee for payment of shift pay particularly if somebody is not doing a shift and noted that the complainant had no automatic entitlement to shift pay. Under cross examination he confirmed that he was shocked and disappointed that a long-standing staff member would make an accusation such as the complainant made. He stated that it appeared that the complainant had an issue with his supervisor. He confirmed that there was no problem with the suction machine, but it was put to him that there was a report made two weeks previously. He confirmed that he had the power to overturn the decision but that the complainant brought nothing to the meeting. He noted that the complainant accused the company along the way of forging his signature but that he wouldn't put anything in writing. Ultimately he felt he had no option but to uphold the decision to dismiss. Summary Closing arguments: The respondent noted section 6(1) of the Unfair Dismissals Act and submitted that that the complainant was dismissed on the basis of his conduct as outlined in the letter of dismissal. Specifically, he was dismissed due to a breach of trust. A breach of trust is categorised as gross misconduct in the respondent's disciplinary policy. The respondent referred to the the case of Barry v Precision Software Ltd. (UD 624/2005) [2006] 10 JIEC 1801, the Tribunal said: “[I]n determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissal Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal… It is not for the Tribunal to intrude into the Respondent's managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal's function is to decide whether the employer's reaction and sanction came within the range of responses, which a reasonable employer might make.” The respondent submitted that they acted reasonably in dismissing the complainant. Dismissal was within the range of reasonable responses open to them as the employer as is set out in their disciplinary policy. The respondent also made reference to the case of Looney & Co. Ltd. v Looney UD843/1984, (taken from Mary Redmond, Dismissal Law in Ireland) the EAT said that it is their responsibility to:“ Consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.” The respondent submitted that there was a breach of trust following the malicious grievance raised by the complainant and it relied heavily on signatures to substantiate an employee's word. The respondent submitted that in March 2023, the complainant suffered a prior occupational accident and was paid his wages throughout his recovery. It exercised its discretion and did not pay the complainant for the second incident. The respondent submitted that the complainant had something to gain by creating a dialogue wherein the incident report was incorrect. However, he had already signed the report prior to the decision regarding his pay being made. Then the grievance regarding the falsification of the signature arose. The respondent also submitted that the complainant put other workers at risk of disciplinary action and dismissal. The respondent posited that the complainant’s allegations could have led to the dismissal of his supervisor had they not disproved his claim through the use of a handwriting expert. The respondent submitted that in the case of Allied Irish Banks Plc v Brian Purcell [2012] 23 E.L.R. 189. Linnane J. reinforced the above stating; “…it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.” The respondent submitted that they followed a robust process, utilising available members of management to ensure that the complainant received fairness and impartiality throughout the investigation and disciplinary process. It noted the irregularity of the responses to them on this matter. The complainant took no accountability of his actions, rather spun the matter into further confusion during each step of the process. The respondent referred to the case of Elia Erian Aziz v. Midland Health Board [1995] E.L.R. 48 in which it was held: While a disciplinary body exercising quasi-judicial functions is bound to adopt fair procedures, a bona fide defect in the procedures adopted is not necessarily fatal to the legality of the ultimate decision made. Where a defect in the procedure adopted or in the conduct of the proceedings is alleged, the applicant in order to succeed must establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done. Accordingly, where there is no reasonable possibility that an injustice may have been done to the person under investigation as a result of the defect complained of, the decision is lawful and has the same effect as it would have had if no such defect had been found. The respondent also referred to the case of Loftus and Healy v. An Bord Telecom (Unrep. H.C. 13 February 1987) it was held that the it was not simply a question of whether or not the employees were deprived of a fair procedure but rather “whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish … [the basis of its dismissal] as the whole or main reason for justifying their dismissal.” The respondent submitted that they carried out a procedure that allowed them enough time to investigate the actions of the complainant and to allow him to respond. This process was transparent and fair. Each deciding officer had the power to overturn prior decisions if new evidence was to arise. The complainant was afforded both a trade union representative and a colleague with him in meetings. The complainant throughout the process refused to genuinely engage with the Respondent. The respondent submitted that the complainant attempted to use his own grievances with the respondent as red herrings to distract from the allegation at hand. These include matters to do with the two National regulatory bodies. The respondent confirmed that all issues raised by the complainant have been resolved with the appropriate bodies. The respondent referred to the case of Lavery J. in O'Mahony v. Arklow UDC [1965] I.R. 710 at p. 735, which held that the Court should not, and in the respectful opinion of the respondent, the Tribunal should not:…parse and construe rules of procedure in a narrow and unreal way, looking for some flaw in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed. The respondent submitted that any alleged breach in procedure does not in and of itself render the dismissal unfair. Mitigation of Losses: The respondent submitted that if the complainant is found to have been unfairly dismissed, which it denies, he is obliged to mitigate his losses. The respondent sought to rely on the case of Coad v Eurobase (1138/2013) in support of its position where the Tribunal noted “in calculating the level of compensation the Tribunal took into consideration the efforts of the Complainant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD858/1999) that a Complainant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work …. the time that a Complainant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”. The respondent referred to Section 7(1)(c) of the Acts as set out: - “(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 (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,” The respondent referred to the case of Juan Ramon Sanchez Gil v CityJet UD/16/146 in which it was stated. “Section 7(2)(c) provides that in examining the financial loss, the Court must have regard to the measures adopted by the employee to mitigate his loss. The legislation does not allow the Court to award compensation in an amount that goes beyond the financial loss attributable to the dismissal. Therefore, as an award of compensation for unfair dismissal is to make reparation for financial loss actually incurred in consequence of a dismissal, the Court sought specific details on the losses incurred and the efforts made to mitigate those losses.” The respondent submitted that in the CityJet case no details were provided to substantiate the complainant’s losses, and no details were given on the complainant’s efforts to mitigate the losses. The Court awarded the Claimant the maximum compensation of four weeks’ pay. The respondent submitted that if the Complainant is found to have been unfairly dismissed, which the respondent denies, the respondent submits that in light of the complainants sparse attempts to mitigate his own loss, the maximum amount of compensation permissible by the Act is four weeks’ pay.62. If the Claimant is found to have been unfairly dismissed, which the Respondent denies, the Respondent submits that in light of the Claimants sparse attempts to mitigate his own loss, the maximum amount of compensation permissible by the Act is four weeks’ pay. |
Findings and Conclusions:
CA-00062668-001 Unfair Dismissal The complainant raised a verbal grievance with his employer. The matter was looked into, and the grievance was not upheld. As well as not being upheld the grievance was considered to be a malicious act. Disciplinary procedures arose on the basis that the complainant was involved in raising a malicious grievance. Disciplinary proceedings took place and the decision arising from those proceedings was that complainant was guilty of gross misconduct. The complainant appealed this decision but was ultimately unsuccessful. The complainant was dismissed for gross misconduct. The complainant suggested that dismissal was an inappropriate option as a sanction for gross misconduct. The matter for me to decide upon is whether the option chosen by the respondent was within the range of options that a reasonable employer would have considered or that the option of dismissal for gross misconduct was a decision that a reasonable employer would have come to. As well as the legal precedents cited by the parties, I am mindful of the Code of Practice on Grievance and Disciplinary Procedures produced by the Workplace Relation Commission produced pursuant to S.I. 146 of 2000 - Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 Section 4.10 & 11 state as follows: 10. Disciplinary action may include:
Section 4.6 outlines the following must apply: 6. The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:
The complainant was involved in a workplace accident in August 2023. He completed a report of the accident. The accident was looked into by the respondent and as part of that process the accident report was reviewed with the complainant. The complainant alleged that the report of the accident show to him when he returned from leave was not the form that he signed. According to the respondent the complainant alleged that either his supervisor, line manager or other employee of the company forged or otherwise falsified the report and that the signature was forged. The complainant submitted that the signature on the report was not his and that some of the content of the report that he had filled out was missing. On foot of the complainant allegations, the company investigated the authorship of the report, involving an expert graphologist in the process. The expert concluded that it was strongly probable that the complainant signed the report. The respondent placed the level of probability at about 90% on foot of this report. The respondent then considered that the complainants allegations amounted to submitting a malicious grievance. This gave rise to a disciplinary process which concluded that the complainant was guilty of gross misconduct. The complainant was subsequently dismissed for gross misconduct, appealed this decision but the decision was upheld on appeal. On the basis of the evidence presented to the hearing, the respondent appears to have largely followed its in-house disciplinary procedure. This disciplinary procedure accords with the Code of Practice produced by the WRC. Terms of reference were drafted at the outset. The details of the grievance and complaint against the employee were put to him, and he was given the right to respond to those allegations. He was afforded the right to representation and any representations were taken into account. Apart from continuing to assert that he did not sign the accident report form presented to him and that elements of it were not present, he offered no other evidence, factors or circumstance such as to overturn the decision that the malicious grievance amounted to gross misconduct. The respondent noted that dismissal is an option open to it where gross misconduct has been established. This is laid out in both the code of conduct and the respondent’s in-house disciplinary policy. Although this may be a harsh outcome, I am mindful of the Purcell v Allied Irish Banks Plc case cited by the respondent, [2012] 23 E.L.R, 189, where Linnane J. stated “It is not for the Employment Appeals Tribunal or the Circuit Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view. The appropriate approach is to ask was it reasonably open to the employer to make the decision it made..” Having regard to this complaint, I am satisfied that it was reasonably open to the respondent to dismiss the complainant in circumstances where it had found gross misconduct had occurred. Accordingly, I find that the complainant was not unfairly dismissed. CA-00062668-002 Payment of Wages The decision by the respondent to suspend the complainant on full pay, and to take him off shift allowance for the duration of the investigation does not contravene the Payment of Wages Act. He was paid for that period of time, but he was working on a shift that would entitle him to receive an allowance. I find that there was no contravention of the Act. CA-00062668-003 Minimum Notice Arising from the decision by the respondent to dismiss the complainant for gross misconduct I am satisfied that he was not entitled to payment in respect of minimum notice in accordance with the legislation. The legislation allows for a person to be dismissed without notice in certain circumstances as outlined at Section 8 of the Minimum Notice and Terms of Employment Act, 1973 were it states 8.—Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party. Therefore, I find that the Act has not been contravened. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00062668-001 Unfair Dismissal Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not unfairly dismissed. CA-00062668-002 Payment of Wages Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the Act was not contravened. CA-00062668-003 Minimum Notice Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the Act was not contravened. |
Dated: 18-03-26
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Unfair Dismissal – reasonably open to the respondent to dismiss – no unfair dismissal established – Payment of Wages – no entitlement to shift allowance - Act not contravened – Minimum Notice – summary dismissal - no entitlement to minimum notice payment – Act not contravened |