Unfair Dismissal and Contested Dismissal

Introduction

A man who worked in the same garage for 51 years before being sacked was awarded €30,000 for unfair dismissal and many other employment law violations (see An Employee v. A Garage) (ADJ-00037740).

The employee testified before the Workplace Relations Commission (WRC) that he began his employment in July 1970. The WRC determined that he worked 68 hours per week and earned a flat €450.

Much of the case focused on whether or not a dismissal occurred, in accordance with the relevant legislation.

Background

The employee testified before the WRC that he began his employment in July 1970. The WRC determined that he worked 68 hours per week and earned a flat €450.

He stated that he "knew it was slave labour" but that he "was in a rut for 50 years" and "had no choice but to keep going"

The garage owners asserted that Mr. B was captured on CCTV collecting a cash payment for coal, forgetting to document the transaction, and placing the cash in his pocket, a claim that the employee refuted.

The WRC was also informed that 44,200 litres of gasoline had vanished from the garage, and the proprietors have stated that the situation is the subject of an ongoing criminal investigation.

Complaints under the Unfair Dismissals Act of 1977, the Organisation of Working Time Act of 1997, the Minimum Notice and Terms of Employment Act, and the Terms of Employment (Information) Act were upheld.

The WRC denied Mr. B's additional claim under the National Minimum Wage Act of 2000.

The Law

Section 1(a) of the Unfair Dismissals Acts 1977 – 2015 ("the Acts") defines termination as:

"(a) the termination by his employer of the employee's contract of employment with the employer, regardless of whether the employee was given prior notice of the termination."

A dismissal as defined by section 1(a) of the Acts must occur before a complainant can seek remedies under the Acts. When the fact of dismissal is in dispute, the burden of proof lies with the claimant. If that burden is met, the burden of proof shifts to the respondent to demonstrate that the termination was conducted fairly.

Section 6(1) of the Acts states that the dismissal of an employee is presumed to be unjust unless there were substantial grounds justifying the discharge, taking into account all the circumstances. In determining whether a dismissal is unfair, section 6(7) of the Acts permits consideration of: (a) the reasonableness or otherwise of the employer's conduct (whether by act or omission) in relation to the dismissal; and (b) the extent (if any) of the employer's compliance or failure to comply with a disciplinary procedure or with the provisions of any code of practice.

It is well-established that basic rules of fairness and natural justice generally apply to dismissal, including: the right of the employee to be informed of the issue; the right of the employee to representation; the right of the employee to a fair hearing; the right of the employee to state their case (which includes the right to be presented with the evidence and the opportunity to examine and refute the same); and the right of the employee to appeal the outcome. The Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) provides employers with a framework for addressing disciplinary issues in the workplace. Although the Code is not legally obligatory, the WRC might consider compliance with it.

On 17 December 2021, he had just returned from his evening tea break when he was brought to the office by one of the company's owners, Mr. K. Mrs. K, the other owner of the respondent's business, was also present. The complainant was informed that 44,200 litres of gas were missing, to which he responded that a leak must be to blame. Upon hearing this, he was informed, "You can f*** off now, you're fired, and you can walk up the road" The complaint remained silent and fled the location. He never returned. The meeting did not exceed three minutes. The complainant said he was not given the opportunity to defend himself.

In McHugh v The Sign and Graphic Centre Ltd t/a O’Reilly Signs (UD334/2008), the dismissal was contested. In this case, the claimant claimed his employer urged him to leave and never return. Whereas the respondent claimed that the employee said he had enough and departed, the employee reportedly stated that he had had enough and left. In concluding that the complainant had been wrongfully terminated on the date of the verbal interaction, the Employment Appeals Tribunal noted that there had been "no investigation of this matter of any kind" on the date of the dismissal.

The WRC is not responsible for determining the guilt or innocence of the complaint, but rather for evaluating the appropriateness of the employer's response to the alleged misconduct.

Section 7 of the Acts states that if an employee is dismissed and the dismissal is unfair, the employee is entitled to redress consisting of whichever of the following the Adjudication Officer deems appropriate having regard to all the circumstances: (a) re-instatement, (b) re-engagement, or (c) compensation (if the employee incurred any financial loss attributable to the dismissal), as is just and equitable having regard to all the circumstances.

Award

In light of the circumstances, the Adjudication Officer determined that monetary compensation was the appropriate remedy for the dismissal, and awarded the complainant €10,000.

The Acts' section 7(2)(c) provides:

"In determining the amount of compensation payable, consideration shall be given to —the measures (if any) taken by the employee to mitigate the loss or, as the case may be, his failure to take such measures."

Between December 2021 and June 2022, the plaintiff did not present any evidence of his attempts to alleviate his loss.

Takeaway

For both parties, the fact of a dismissal generally needs to be evidenced in writing.

Employers should ensure a dismissal is conducted in accordance with due process and fair procedure, allowing an employee to have his case independently evaluated and heard before a final decision to terminate is made. In addition, there should be an appeals mechanism for any decision to terminate an employee's employment.

The most important lesson for employees following a termination of employment is to take the necessary steps to seek other employment; otherwise, their remuneration may be decreased proportionally.