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Failure To Attend The Hearing Costs The Employer €85,000

Facts: The Complainant worked for the Respondent as a forklift worker for 31 years. The Respondent is a paintings/coatings supply company. In or around May 2019, the Complainant was told by her manager to attend a meeting. She was not told prior to this, the purpose of the meeting nor was it suggested to her that she could bring a representative to the meeting. At the meeting, the manager asked the Complainant if she had taken empty paint buckets without permission and if she had put her personal rubbish into Company’s refuse. The Complainant stated that she had permission for both from 2 of her managers, and following the permission, she did this openly approximately once a week. The Complainant had been allowed to do this for 5 years. An investigation meeting took place on the 15th May 2019, and she was informed that the 2 managers had denied giving such permission. However, nothing was given to the Complainant evidencing these alleged denials. A disciplinary meeting took place on 13th June 2019, where the Complainant was represented by her trade union representative. The Complainant was asked about the same allegations, and the Complainant stated that she had permission for both.

By a letter dated 17th June 2019, the Complainant was dismissed for misuse of company property and misappropriation of company’s assets (theft). The Complainant appealed the decision internally within the Company and the appeal took place on 2nd July 2019. The Complainant again stated that she had permission and that her dismissal was unfair in substance and procedure. On 18th July 2019, the Complainant was informed that her appeal was unsuccessful and that her dismissal was upheld, without setting out any further details.  

Other factors of relevance considered by the WRC in this case included evidence from the complainant that during the course of her employment she had made complaints to her employer regarding health and safety related issues and she felt her dismissal was penalisation for having made those complaints.

The health and safety related complaints included a complaint about the inadequacy of a loading ramp (which had been made a number of years previously), a complaint (in the weeks leading up to her dismissal) regarding the use of a particular chemical in a cleaning agent in the work place and another complaint (again in the weeks leading up to her dismissal) regarding a request for a hoover (which was denied) in order to hoover up talc and titanium substances instead of having to sweep them up as the Complainant felt this was having a negative impact on her health.

The Complainants primary claims included a claim for unfair dismissal and claims for penalisation. The Claimant also sued the employer for failure to provide a contract. 

Findings: The Respondents did not attend the Adjudication hearing which was listed on the 17th December 2019. The Adjudication Officer was satisfied that the Respondents had been put on notice of the hearing and she proceeded to hear the matter. Further the Adjudication Officer noted that the Respondents had applied for a postponement of the hearing but had not heard back from the WRC. The Adjudication Officer found that it was wrong on the part of the Respondent to assume, in the absence of a reply from the WRC, that the matter would not be proceeding.

Regarding the Complainant’s claim of unfair dismissal, the Adjudication Officer found that the dismissal of the Complainant was unfair. The Adjudication Officer noted that the Complainant had brought her claims under a number of pieces of legislation including the Unfair Dismissals Acts (UD Acts) and the Safety, Health and Welfare at Work Act, 2005 (SHWW Act). Ultimately the Adjudication officer chose to make the award under the SHWW Act (for penalisation in the form of dismissal), as it allowed the Adjudication Officer to make an award on the basis of what is just and reasonable, whereas the UD Acts would only allow an award based on  loss of earnings.

In dealing with the Penalisation complaint under the SHWW Act, the Adjudication Officer referred to the ‘but for’ test as set out by the Labour Court in O’Neill v Toni and Guy Blackrock Limited [2010] ELR, and found that the complaint regarding the defective ramp did not affect the dismissal of the Complainant as it had happened years previously.  However, the Adjudication Officer found that the complaint in relation to the talc and titanium powder and the complaint concerning the chemical in the cleaning agent constituted health and safety complaints made just weeks before the dismissal. The Adjudication Officer took the view that the dismissal was because of those health and safety complaints and found against the Respondent. Interestingly, in determining the award, the Adjudication Officer, took into account loss of earnings to date because of the dismissal as well as loss of future earnings and even losses to pension. The Adjudication Officer also made a further award of “just and equitable” compensation.

As regards the Claimant’s claim against the Respondent for failure to provide her with a contract, the Adjudication Officer found that the Complainant  was not provided with a written contract for over 31 years of her employment and awarded the maximum of 4 weeks wages for this breach.

Award: In total the Adjudication Officer awarded the Complainant the significant sum of €82,531.00 under the SHWW Act and a further €2,228.00 under the Terms of Employment (Information) Act.

Takeaway for Employers: This case demonstrates the importance of employers attending WRC hearings. Employers should note that a mere application for postponement of a hearing does not mean the hearing will not proceed.  In the employer’s absence, the Adjudication Officer will in many cases proceed and base the award only on the complainant’s evidence. The employer’s failure to defend its case due to absence has resulted in this case in an award of nearly €85,000.00 against it and it will be required to lodge €300 to the Labour Court if it wishes to appeal the decision.

Decision link

30th April 2020

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2

www.aocsolicitors.ie

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