Case Number: ADJ-00014570. Workplace Relations Commission.
| Docket Number | ADJ-00014570 |
| Hearing Date | 04 December 2018 |
| Date | 01 June 2019 |
| Year | 2019 |
| Court | Workplace Relations Commission |
| Parties | A Landscaper v A Landscape Contractor |
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts 1977 - 2015, these complaints were assignedto me by the Director General. A hearing was conducted over two days on November 1st and December 4th 2018, at which the parties were given an opportunity to be heard and to present evidence relevant to the complaints.
The complainant was represented by Mr Anthony Slein BL, instructed by Ms Nicola Warilaw of Hennessy and Perozzi Solicitors. The respondent was represented by Mr Rory Treanor of Peninsula Group. On day one of the hearing, the managing director, another director, a supervisor and a secretary / payroll officer attended. On day two, the managing director attended again and he was accompanied by another director, who was the decision-maker in respect of the complainant’s dismissal.
Before the commencement of the hearing on November 1st 2018, the complainant withdrew his complaint under the Organisation of Working Time Act 1996. At the hearing itself, the complaint under the Terms of Employment (Information) Act 1994 was withdrawn. The complainant submitted claims under the Unfair Dismissals Act 1977 and a parallel complaint of discriminatory dismissal under the Employment Equality Act 1998. In accordance with Section 101(4)(a) of the Employment Equality Act 1998, the complaint under that Act is deemed to have been withdrawn because, within the 42 days from when he was notified of the requirement to do so on May 30th 2018, he did not withdraw his complaint under the Unfair Dismissals Act. In summary therefore, the following complaints have been withdrawn:
CA-00018978-003: Complaint under the Terms of Employment (Information) Act 1994
CA-00018978-004: Complaint under the Employment Equality Act 1998
CA-00018978-005: Complaint under the Organisation of Working Time Act 1997
Background:
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The respondent company is a long-established landscaping business and the complainant, who is Latvian, joined them as a general operative in October 2005. On October 25th 2017, he was seen putting a box for welding rods into a van in which he was getting a lift home. Following an investigation, the company’s directors concluded that the complainant intended to steal the box of welding rods and he was dismissed for gross misconduct on November 10th 2017. The complainant claims that his dismissal was unfair. He also submitted a complaint that he was not given notice of the respondent’s intention to dismiss him and he was not paid in lieu of notice. Lastly, he claims that, by dismissing him, the respondent has discriminated against him on the grounds that he is from Latvia. At the time of his dismissal, the complainant was earning €525 per week, plus overtime pay when overtime was available. On the final day of the hearing, December 4th 2018, he had not worked since his dismissal in November 2017 and he said that he was suffering from stress. On February 8th 2019, the complainant submitted a letter from his doctor dated December 3rd 2018. In this letter, his doctor noted that the complainant had a difficult relationship with his employers and that he was off work from October 2016 until January 2017 because of stress. He attended his doctor again on October 17th 2017, following an argument with his boss and he was out of work due to stress again, this time for only four days, until October 20th. The doctor’s report notes that “he ultimately left work, having been accused of stealing” and that “he was upset by this allegation.” Chronology of Events Leading to Dismissal October 25th 2017 The company was building a new garage and the machinery supervisor, “Mr Murphy,” was over-seeing the transfer of materials and equipment from an old shed to the new garage. He asked the complainant to clear out the shed and to move usable equipment and materials to the new garage. He was instructed to put waste and non-usable stuff on a pallet for removal to a skip. During the clean-out, the complainant came across two boxes of welding rods, a large, red, plastic box and a smaller, yellow box. In his evidence at the hearing, Mr Murphy said that he told the complainant that the rods were good. The complainant brought a pallet of still-useful stuff to the garage. During the investigation into this incident, the complainant said that he needed the red box because he had welding rods at home that fitted into the box. He said that he took the rods out of the red box and left them beside the yellow box on the pallet of useful materials for the garage. As he was walking to a colleague’s van to get a lift home, the complainant was carrying the red box for the welding rods. He was seen by one of the company’s directors, “Mr O’Donnell,” who asked him what he was doing with the box of welding rods. The complainant replied that he wanted them. Mr O’Donnell told him to put the box back, and, although he didn’t do so immediately, when Mr O’Donnell repeated the instruction, the complainant put the box back. Mr O’Donnell then retrieved the box from where the complainant left it and he showed it to Mr Murphy. The red box was half full of welding rods and the yellow box was inside the red box. There were no boxes of welding rods on the pallet of good stuff that the complainant had left at the garage. October 26th 2017 Mr O’Donnell informed the managing director, “Mr O’Connor” what had happened with the box of welding rods and Mr O’Connor called the complainant to a meeting. When he was asked about taking the box, the complainant told Mr O’Connor that it was empty and that he was taking it to keep his own welding rods in it. Mr O’Connor brought the complainant to where he said that he replaced the box, and, although the complainant said that there were a few red boxes, Mr O’Connor said that the only box they had was the one he had returned, which was not empty, but which was full of welding rods. The complainant said that, when he decided to take the box, he took out the welding rods and that he had left them loose on a pallet. When he replaced the box at the garage, he said that he put all the rods back into the box. Mr O’Connor remarked that the complainant seemed to be changing his story, to which the complainant is alleged to have replied that he could change his story five times if he wanted. At the end of the meeting, the complainant was suspended on full pay pending an investigation. The letter notifying him of his suspension said that the reason was to facilitate an investigation into “alleged theft or unauthorised possession of our property, irrespective of value, namely it is alleged that on 25th October 2017, you have removed welding rods box (sic).” Later the same day, Mr O’Connor interviewed Mr O’Donnell and Mr Murphy about what had occurred with the welding rods the previous day. Mr Murphy said that around 2.00pm, he was with the complainant as he was sorting out stuff to move from the old shed to the new garage. He saw a red box of welding rods and a yellow box of rods and he told the complainant that they were good. The complainant brought all the good materials on a pallet to the new garage. Mr O’Donnell said that around 4.00pm, he saw the complainant going to the van of the person with whom he was getting a lift home. He had a red box for welding rods in his hand and Mr O’Donnell asked him what he was doing with it. He said that the complainant replied, “I need them.” Mr O’Donnell told the complainant to put them back, which he did. Mr Murphy said that Mr O’Donnell came to him around 4.05pm with a rex box of welding rods. Inside was the small yellow box of rods. There were no boxes of welding rods on the pallet of good materials for the garage. November 1st 2017 The complainant was invited to a disciplinary meeting which was scheduled for November 7th. The letter of invitation included copies of statements of Mr O’Donnell, Mr Murphy and a note of the meeting that Mr O’Connor had with the complainant on October 26th. He was advised that he could bring a colleague to the meeting and he was also provided with a copy of the company’s disciplinary rules and procedures. In the letter inviting him to the disciplinary meeting, the complainant was informed that the incident was being treated as gross misconduct and that if he was unable to provide a satisfactory explanation for what occurred, he would be dismissed without notice. November 7th 2017 A disciplinary meeting was chaired by another director, “Mr Tobin.” The complainant attended initially on his own but then asked for a named colleague to act as a translator. At the meeting, the complainant challenged Mr Murphy’s statement, alleging that Mr Murphy was told to say that the red box of rods was among the materials being cleared out of the old shed and that he saw it at 2.00pm. The complainant said that he only came across the red box of welding rods when he was almost finished the job. It was underneath other items. He said that the red box “was not even half full” and he took the remaining rods out and placed them on the pallet of good materials beside the yellow box. He then went to the van with the red box.... |
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