Facts: The Complainant was appointed as a cargo surveyor with the Respondent on 1st April 2004 and was promoted to Operations Manager in 2006. He was second in command to the General Manager, and he was not allowed take holidays when the General Manager was absent. However, arrangements had been previously put in place to allow the General Manager and the Complainant to be out of the office at the same time.

The Complainant received a written warning on 1st October 2018 for a statement about a third party which was reduced to a verbal warning on appeal. The warning was to remain on his file for six months. In October 2018, the Complainant made a number of complaints to the WRC regarding taking holidays, overwork and other issues.

The Complainant requested parental leave and a week of 2019 leave over Christmas 2018, but this was refused as the General Manager had already scheduled to be on leave. In September 2018, the Complainant requested annual leave for 24th December 2018, but this was refused for the same reason. On 24th December 2018, the General Manager received a text message from the Complainant’s wife saying he was sick and could not come into work.

In mid-January 2019, the General Manager received a telephone bill which suggested that the Complainant was in Germany on 24th December 2018. The Complainant was called into a meeting on 21st January 2019 and the Complainant was asked to explain. The general manager was dissatisfied with the Complainant’s explanation and the Complainant was suspended with pay pending investigation. He was immediately instructed to return his work phone and only allowed to remove his personal belongings. The Complainant had personal information on his work phone which he wished to remove. However, as he was asked to immediately return the company phone, he reset the phone to factory settings which not only cleared his personal data but also work-related information that was on his phone.

The Respondent appointed an external investigator to carry out the investigation in relation to the sick leave discrepancy and obstruction of the process by removal of data from the Complainant’s mobile phone despite instruction not to do so. Despite the Complainant objecting to various terms contained in the Terms of Reference issued by the investigator, the investigation was carried out and the allegations were upheld. The Complainant appealed the outcome report and requested for an ‘independent’ external person to carry the investigation. He claimed that he was victimised because of his complaints to WRC and that his suspension was a disproportionate outcome. His request for appeal was rejected.

The General Manager invited the Complainant to a disciplinary hearing and dismissed the Complainant without notice, for gross negligence on 29th March 2019. An appeal of this disciplinary outcome took place on 28th May 2019 and the sanction of dismissal was upheld.

The Complainant lodged a claim in the WRC for unfair dismissal.

Findings and Conclusions: In relation to the Respondent’s argument regarding declining the holiday request made by the Complainant, the Adjudicator noted that the Complainant was second in command to the general manager and that previously, arrangements were made where both General Manager and the Complainant could be out of office at the same time. Yet, the Complainant’s request for parental leave and holidays in 2018 were both denied without any basis.

The Adjudicator referred to British Leyland v Swift [1981] IRLR 91 to determine the reasonableness of the Respondent’s conduct in the dismissal and noted that there were no grounds for Complainant’s immediate suspension as set out in Bank of Ireland v Reilly [2015] IEHC 241. The Adjudicator also observed that there was no informal resolution opportunity in place which could have easily resolved the dispute regarding short absences.

The Adjudicator found that the relationship between the Complainant and the Respondent, especially the General Manager, was combative and that the Respondent’s actions were neither within the band of reasonable responses nor proportionate to the conduct of the Complainant given his seniority.

Decision: Based on the above observations, the Adjudicator found that the Complainant was unfairly dismissed. The Complainant’s financial loss for the past 2 years was ascertained to be €126,000. Taking into account the Complainant’s contribution toward his dismissal, the Adjudication Officer awarded the Complainant a sum of €80,830.77 towards unfair dismissal and a sum of €7,269.23 towards the Complainant’s notice period.

Takeaway for the Employers: This decision highlights not only the importance of following Company procedures but to ensure that the sanction is proportionate to the matter. Employers should also note that the WRC sets a very high bar to uphold a summary dismissal for gross misconduct as being a fair dismissal. Although the award was reduced to reflect the Complainant’s contribution to his own dismissal, he was awarded a compensation of over 15 months of financial loss as the sanction was disproportionate given his seniority in the company.

Link – https://www.workplacerelations.ie/en/cases/2022/january/adj-00021145.html

Authors – Chaitra Girish Mallya & Anne O’Connell

More from Anne O'Connell Solicitors