Mistakes by both Employer and Employee Prove Costly

Certain themes or principles are regularly repeated in decisions issued by the Workplace Relations Commission (WRC). A number of those themes are evident in the recent decision of Adjudication Officer, Jim Dolan, in the case of Fitzgerald v Ground Investigations Ireland Limited, ADJ-00031446. Here our Adrian Twomey highlights the key elements to which both employers and employees should pay attention.


Mr. Fitzgerald was employed as a General Operative by a "ground investigations" contractor offering a range of services to the civil, structural and engineering industries. He commenced employment on 30 July 2018 and was dismissed just under two years later.


It appears from the decision that the employee suffered an injury at work in May 2020 and that it led to his absence on medically certified sick leave for some days in June of that year. The company appears to have argued that the employee subsequently took uncertified sick leave in breach of a company requirement that all sick leave be medically certified. They relied in part on that argument and a previous disciplinary warning in deciding to dismiss him for alleged gross misconduct.

Drilling

The Adjudication Officer reviewed the employee's employment contract and found that the provisions regarding sick leave and medical certification were not consistent with each other. He also reviewed the previous warning letter and found that it did not specify the level of warning involved. In other words, it was unclear whether the letter was recording a verbal warning, written warning or final written warning.


Critically, the Adjudication Officer noted that the employer had not ever given the employee a copy of the company's disciplinary policy and procedure. This was found to be contrary to the expectations mapped out in the Code of Practice on Grievance and Disciplinary Procedures. He also noted that the employer:

  • gave the employee just one day of prior notice before the disciplinary hearing;

  • did not tell him the purpose of the hearing;

  • did not tell him that he could be dismissed following the hearing;

  • did not offer him the opportunity of being represented at the hearing; and

  • did not offer him the chance to appeal his dismissal internally.

In simple terms, it appears that the employer's paperwork and communication with the employee was poor and that it did not follow fair procedures. The Adjudication Officer concluded that whilst the employee's conduct was unacceptable and he did breach some of the company's rules, the sanction of dismissal for supposed gross misconduct was not proportionate to his offences. He went on to find that the dismissal was unfair for these reasons.


The employer, however, was apparently not alone in making mistakes. The Adjudication Officer noted that the employee's efforts to mitigate or minimise his loss by looking for another job were "poor". The employee was unable to produce any documents indicating that he was actively seeking another job and his evidence appeared to point to his having made minimal efforts to do so. Having noted these facts, the Adjudication Officer awarded the employee just four weeks pay or €2,424.48.


As happened in the Lidl case on which we reported earlier this month, the employee won his case for unfair dismissal. His victory was hollow in circumstances where the level of compensation awarded was low. The low level of award in each of the cases was based on a lack of evidence of the employees having tried to find alternative employment.


As in the Lidl case, it appears that the employer was fortunate to escape a heavier punishment. In this case, one can only imagine that the award might easily have been significantly more in circumstances where the procedures followed were so poor and no disciplinary policy and procedures had ever been issued to the employee.


The outcome highlights the importance of both employers and employees seeking and obtaining appropriate legal advice in employment cases. Those requiring such guidance or representation before the WRC can contact our Adrian Twomey.



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