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Labour Court reduces Unfair Dismissal aware by 70% due to the employee’s behaviour

Vadym Kalinin V Structured Finance Management (Ireland) Limited

The Complainant was dismissed after seven years of service. He took an unfair dismissal claim and also claimed that he was subjected to discriminatory treatment, harassment and victimisation contrary to the Employment Equality Acts. The WRC Adjudicator’s held that the Complainant had no claim under either Act. The Complainant appealed these decisions to the Labour Court.

The Complainant identified three complaints under the Employment Equality Acts to the Labour Court:
1. The Complainant stated that he was required to turn his computer on and off at the beginning and end of his shift. He submitted this requirement amounts to discrimination on the age, race and family status grounds.
2. The Complainant stated that he normally brought porridge with him each day for lunch. When preparing the porridge for consumption his colleagues commented that he added only water to it which they found unusual. He stated that this was a cultural matter and that the comments amounted to discrimination on the race ground.
3. The Complainant told the Court that, unlike other staff members who resigned their employment with the Respondent, he was escorted from the building after he was dismissed.

Additionally, at the hearing, the employee submitted a harassment claim alleging that he was deliberately poisoned by his colleagues at a Christmas party. He claimed that that was the only logical conclusion as he was careful about how much he drank. Without warning, he was put in a taxi and sent home.

At the hearing, the Respondent submitted that during 2013 to 2015 difficulties arose with the Complainant. In line with procedure, the Complainant was advised that the Respondent was commencing a Performance Improvement Process (PIP). The Complainant refused to participate in this, as he walked out on a PIP meeting. He refused to answers questions regarding updates on his tasks when asked by his line manager and reportedly became aggressive during this discussion. Therefore, it was submitted that the Respondent felt obliged to instigate a disciplinary process in respect of allegations of repeated instances or insubordination by the Complainant. His conduct was having an adverse effect on the morale and operations of this small Dublin office.

In March 2015 the Respondent invoked disciplinary action against the Complainant. Following a detailed procedure, the Director of the Company issued the Complainant with a final written warning arising out of what was considered unacceptable behaviour. The Complainant appealed this decision to a Mr. Robert Berry, Chief Executive of the Company, who upheld the decision.
Outside of the disciplinary process, Mr. Berry held a further meeting with the Complainant inviting him to participate in mediation in an effort to resolve the workplace issues. The Complainant refused. Mr. Berry then decided that mutual trust and confidence no longer existed between the parties and, as a result, he terminated the Complainant’s employment in May 2015.

The Labour Court found that the Respondent had a model disciplinary procedure in place but that they did not comply with any part of that procedure. However, regardless of the Respondent’s disregard for the procedure, the Labour Court held that the Complainant contributed significantly to the outcome through his unreasonable behaviour towards his colleagues and management. It held that the bond of trust between the employer and employee had been completely broken. The Labour Court found the Complainant to be 70% responsible for his dismissal and the Respondent 30%. The Labour Court noted that the Complainant was earning roughly €58,000 per annum with a maximum award of two years loss of pay under the Acts. Therefore, the Complainant was awarded €35,000.

In relation to the appeal under the Employment Equality Act, the Labour Court dismissed his appeal as the Complainant offered no evidence to support the claims.

The 70% reduction in an award due to behaviour is substantial but the Complainant’s complaints under the Employment Equality Acts may have illustrated the Complainant’s behaviour to the Labour Court and gone against the Complainant.
http://www.workplacerelations.ie/en/Cases/2018/January/UDD181.html
http://www.workplacerelations.ie/en/Cases/2018/January/EDA183.html

For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitor.ie or +353 1 2903580
5th February 2018

Anne O’Connell
Solicitors
1-3 Burton Hall Road
Sandyford
Dublin 18
www.aocsolicitors.ie

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