September 01, 2022
Key Learnings
This case highlights the onus on employers to investigate and clarify issues raised by employees as and when they arise. When the Complainant made it clear that he believed he was entitled to maintain his terms and conditions from his previous employer, the Respondent should have investigated this assertion and if necessary, should have sought advice relating to his obligation to maintain the Complainant’s terms and conditions of employment, including hours of work which was at the centre of the dispute. For any termination of employment, fair procedures must be followed including that the employee is informed in advance of any allegations, that they have the right to be represented and also have a right of appeal. Furthermore, any sanction arising from a disciplinary process must be proportionate to the alleged wrongdoing.
Background
The Complainant originally worked with a Transport Company who had a franchise with DPD. This franchise was taken over by the Respondent, also a Transport Company, in April 2019. The Complainant believed that his hours of work and breaks should remain the same whereas the Respondent believed this was a new employment relationship with different hours of work. This difference of opinion culminated in the Complainant coming in later than the Respondent expected and, in one instance, in the Respondent’s view, leaving the depot without proper cover. The Respondent instigated disciplinary procedures and the Complainant was subsequently dismissed.
Summary of Complainant’s Case
This transfer was covered by the TUPE regulations where the existing Terms and Conditions of Employment would continue under the new owner of the franchise. The Complainant relocated to a new address for commencement of work on Monday the 29th of April. Immediately there was a breach of the TUPE regulations as he had been working on a 9.00am to 6.00pm basis. The Respondent, insisted on longer hours and during the first week the Complainant worked 46.5 hours over 3.5 days with one break of thirty minutes. The Complainant, as a loyal employee carried out extra hours as the start-up period and was assured that his normal hours worked for the previous employer would resume after the first week.
However, the following week longer hours were then demanded by the Respondent. When the Complainant commenced work at 9.00am he was questioned about his lateness. The Complainant replied that that was his usual time. The Respondent demanded he started at 7.30am in the morning until close of business without a definition of what that was. On questioning this, and that any payments over 8 hours would require overtime, the Complainant was advised that no overtime would be paid. The Complainant responded that he could not work 12-hour days without breaks or payment. The Complainant had listed the absence of breaks and the failure to pay minimum wage. The Complainant was asked to work excessive hours and when this was raised with the Respondent he was met with no response or effort to discuss his concerns. On Thursday the 20th of June 2019 an e-mail was sent to the Respondent outlining the Complainant’s concerns. This was met with a reply in an undated letter of June 2019 and the Complainant does not accept the "understandings" which the Respondent maintains were the basis of a relationship.
The Complainant did not have a Grievance Procedure to follow in relation to his concerns about the increased hours and the lack of breaks which he was now subject to. After 5 weeks of working lengthy days, seldom getting lunchbreaks, and not being "looked after" by the Respondent as promised, the Complainant sent an email on 20/6/19 pointing out the hours he had been working, lack of lunchbreaks and no additional payments or acknowledgment, and reminded him of their agreement. The Complainant also stated that if he was not going to be paid overtime, he would revert to his original hours from Monday 1st July - giving the Respondent a week’s notice. The Respondent replied informing the Complainant that he was not able to pay overtime or offer time off in lieu, and it was not a "9-6-hour position”. The Respondent put the additional allegations to the Complainant and the Complainant said he would not answer them. On 5th August the Complainant received his letter of dismissal. The reasons given were bringing the company into disrepute and wilful neglect of duty.
The dismissal of the Complainant was procedurally flawed in that he attended without any representation nor was he advised to have anybody there to protect his interests. The complaints clearly outlined in the earlier letter of the 20th of June were dismissed by the Respondent. The letter of dismissal itself was defective in that it did not provide an appeal procedure against the decision made. Given the long history and expertise of the Complainant in the logistics business, the penalty imposed was excessive in relation to the issues by which the Respondent maintained he was entitled to dismiss the Complainant. The Respondent is in breach of regulations in the failure to produce Terms and Conditions and also in relation to failure to give proper breaks in relation to the provisions of the Organisation of Working Time Act. The National Minimum Wage Act 2000 regulations are also breached as is outlined in detail on the application showing that the payments for the time period worked and the hours worked were below the minimum wage relating to the employment period. The Complainant had failed to find work since the date of the dismissal.
Summary of Respondent’s Case
It had been made very clear to the Complainant that his hours of work were from 8.00am to 6.00pm each day in line with the needs of the business and indeed the Complainant worked those hours initially without complaint.
On the 20th of June 2019 the Respondent received an email from the Complainant stating that he was unhappy and unsettled with his hours of work. The Respondent replied to this in a timely manner, by letter, detailing the hours of work and the statutory breaks that the Complainant was entitled to and confirming that he was in the process of drafting the Contract of Employment/Terms and Conditions of Employment and that he would liaise with the Complainant in relation to his terms and conditions considering the needs of the business. The Respondent further confirmed to the Complainant that he had not been asked and was not expected to attend at the workplace on Sundays.
On the 26th of June 2019 the Respondent had a meeting with the Complainant and confirmed that the Complainant would be required to be in work from Monday the 1st of July 2019 at 8.00am and further informed him of his statutory entitlements in relation to breaks. Despite the discussions, on Monday the 1st of July 2019 the Complainant did not arrive at work until 9.00am. When the Respondent approached the Complainant asking him about being late for work, the Complainant dismissed what he had to say.
On the same date a member from Head Office staff attended the depot to carry out some work relevant to his role and was working in the office where the Complainant worked. In the presence of customers of the business the Complainant left the premises. On his way out, the Complainant informed the customers that this other staff member would deal with them, and the Complainant then left the building. This was unacceptable as the other staff member’s role was not to assist with customers at the Depot and effectively the employee left the Depot unattended, unlocked and in the control of a non-staff member.
A further un-manifested consignment of notes was left on the desk in the open unlocked office which was unmanned, and which is a serious breach of Data Protection. The security and protection of the Respondent’s customer’s data and goods were put at serious risk. The Complainant was fully GDPR trained and was aware of the serious consequences of same.
When the Complainant attended at work on Tuesday the 2nd of July 2019 the Respondent immediately informed him that, given what had taken place the day before, there was no option but to suspend him with full pay until a full investigation was carried out in relation to what had occurred the previous day.
At all times the Respondent attempted to liaise with the Complainant in person to discuss all contractual issues but unfortunately received no response verbally. At all times The Respondent’s email correspondence was respectful, professional and clear. The Complainant’s emails, however, were accusatory and at times abusive.
In relation to the investigation that The Respondent sought to carry out, the Complainant was not cooperative. The Respondent attempted to commence the investigation immediately and on the 3rd of July 2019 tried to telephone the Complainant to organise a meeting but, as there was no answer, the Respondent then sent an email to the Complainant asking if they could meet the following week. The Complainant stated that he wasn’t able to answer and that he would have to speak with his witness. There were emails back and forth and then on Wednesday the 10th of July, the Respondent sent an email to the Complainant seeking to meet Thursday the 11th of July at 4.00pm at a Hotel. The Respondent received an email from the Complainant agreeing to meet on Thursday the 11th of July. The meeting was arranged for 4.00pm but the Complainant did not co-operate with same.
The Respondent then sent an email seeking to meet on Friday the 12th of July at 4.30pm and received a reply from the Complainant declining to meet.
On Friday the 12th of July the Respondent sent a further email seeking to meet on Tuesday the 16th of July and received a reply by email from the Complainant on Saturday the 13th of July stating that he did not know if he could meet as he hoped to bring a witness to the meeting. The Respondent received a further email on Monday the 15th of July wherein the Complainant declined to meet and subsequently received a reply on the 16th of July agreeing to meet but only if the meeting could be rescheduled for one hour later at 5.30pm. On Wednesday the 17th of July the Respondent sent an email agreeing to meet at the Complainants preferred time of 5.30pm. The meeting took place on the 19th of July. The matters under investigation were as per the document headed “Matters for Investigation” which had already been communicated to the Complainant. The Complainant did not fully co-operate with the investigation and did not confirm, at any time, that he wished to keep his position within the business or that he was prepared to work the hours of work 8am to 6pm.
After due consideration, the Respondent felt he had no option but to dismiss the Complainant as it was a complete and utter breakdown of trust.
A letter was sent on the 5th of August 2019 to the Complainant giving the reasons for the dismissal as follows: Conduct tending to bring the employer into disrepute and affecting the business of the employer. Gross default and wilful neglect in the discharge of his duties. The Respondent did not receive any letter or contact from the Complainant nor any representative on his behalf in relation to an appeal of this decision.
Findings and Conclusions
Dismissal as a fact is not in dispute in this case and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair and whether dismissal was a proportionate response to the allegation of misconduct. The Complainant alleges that the investigation and disciplinary processes were unfair insofar as he was not given advance notice in writing of the issues, he was not afforded the right of representation and he was not offered the right of appeal. The Respondent claims that this was not a transfer of undertakings and that therefore the previous conditions of employment enjoyed by the Complainant did not necessarily continue. While there is no claim under TUPE in this instance, the Adjudicator noted the evidence given by the Complainant that he had been assured by his previous employer that this was covered by TUPE and therefore he had a legitimate expectation that his previous conditions of employment would continue. When he repeatedly raised this issue with his new employer it fell on deaf ears. The Respondent could not but have been aware that it was this belief i.e. that the Complainant should continue with his pre-existing terms and conditions including hours of work, that was at the root of the disagreement between them. The onus was on the Respondent to clarify this issue before taking the decision to terminate the employment of the complainant.
The Adjudicator found that the procedures used by the Respondent were fatally deficient as they did not comply with the requirements of natural justice. An employee has the right to be informed in advance of the allegations and this did not happen in a satisfactory manner. An employee has the right to be represented and the Complainant was never informed of this right. An employee also has a right of appeal, and no such appeal was offered. In addition to these deficiencies, the decision to dismiss fell outside of the range of reasonable responses of a reasonable employer to the conduct concerned. When the Complainant made it clear that he believed he was entitled to maintain his terms and conditions from his previous employer, the Respondent should have investigated this assertion. If necessary, he should have sought advice relating to his obligation to maintain the Complainant’s terms and conditions of employment, including hours of work which was at the centre of the dispute.
Decision
Accordingly, the Complainant was unfairly dismissed. The Complainant in evidence said that he retired in March 2020 and therefore was not available for work from that date. The quantum of compensation therefore is limited to his loss from the date of his dismissal, 1st August 2019 until 6th March 2020 which is estimated to be €13,600 and the Respondent is ordered to pay this to the Complainant by way of compensation.