Case Number: ADJ-00020853. Workplace Relations Commission

• Docket Number: ADJ-00020853
• Hearing Date: 17 December 2019
• Date: 17 April 2020
• Court: Workplace Relations Commission

Procedure:

This complaint was submitted to the WRC on April 2nd 2019 and, in accordance with Section 8 of the Unfair Dismissals Acts 1977 - 2015, it was assigned to me by the Director General. A hearing took place over two days on November 26th and December 17th 2019, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.

The complainant represented himself. On November 26th, he was accompanied by two former work colleagues and members of the Unite union. One of his colleagues gave evidence on December 17th. The respondent was represented by Mr Michael McCormack BL, instructed by Pinsent Masons Solicitors. For Pinsent Masons, Ms Ruby Marie Rice attended on the first day of the hearing and Ms Ciara Ruane and Mr John McMenamin attended on the second day.

The five members of the respondent’s management team who attended the hearing are listed below. Evidence was given by the first three managers who, in this document, I will refer to as the “Investigation Manager,” the “Line Manager,” and the “Appeal Manager.”

1. The Area Technical Operations Manager based in the UK, the “Investigation Manager;”
2. The complainant’s manager, the Area Technical Operations Manager in Ireland, the “Line Manager;”
3. The Regional Technical Operations Manager, the “Regional Manager;”
4. The Head of Engineering Inspection, the “Appeal Manager;”
5. The Human Resources (HR) Manager.

Background:

The respondent is part of a UK public limited company providing inspection services for heavy lifting equipment. They employ 25 engineers in Ireland and the complainant commenced working with them on February 12th 2013. He was a home-based engineer, travelling to clients in his company car to carry out inspections on lifting equipment in the engineering and transport sectors. In January 2016, he took up a role as a part-time Associate Lecturer in Engineering in an Institute of Technology. Chronology Leading to the Complainant’s Dismissal On March 5th 2018, while he was an employee of the respondent, the complainant registered an engineering business in his own name with the Companies Registration Office (CRO). He and his wife are listed as directors and his wife is the company secretary. Under the NACE code (nomenclature of economic activities), the company is categorised under the activity of “engineering and inspections.” The evidence given at the hearing was that, In July 2018, the complainant’s Line Manager became aware that he had set up this company. On November 22nd, the complainant was invited to an investigation meeting that took place on November 29th. At the meeting, he was asked to explain his intention in setting up the company and why he did not inform his Line Manager. He was also asked to explain alleged anomalies in his mileage and travel during July 2018. He attended the investigation meeting accompanied by his colleague from Unite. Following this, a disciplinary hearing meeting was held on December 11th, at the end of which he was dismissed. On December 15th 2018, the complainant submitted an appeal against his Line Manager’s decision to dismiss him and a meeting to this effect was held on January 10th 2019. A further appeal meeting chaired by the Head of Engineering and Inspection took place by conference call on January 24th. The complainant argued that the investigation that preceded his dismissal was procedurally flawed, and the Appeal Manager upheld some of his points in this regard; however, he concluded, “I believe there has been a clear breach of Company policy in failing to declare a material conflict of interest which is a direct conflict with (the respondent’s) business. You should have been aware of the Statement of Business Principles which was made available to you as part of the annual regulatory tests and your failure to declare this conflict represents a serious breach of trust and confidence. Therefore I believe, against the evidence presented, dismissal on the grounds of gross misconduct is the appropriate sanction to apply.” It is the complainant’s case that his dismissal was unfair. Due to difficulties in his relationship with his Line Manager, he claims that the decision to dismiss him was not unbiased. He said that no conflict existed between his company and the business of his employer and furthermore, that the Statement of Business Principles was not adequately communicated to him. He said that no account was taken of his unblemished disciplinary record and his outstanding performance and he claims that no consideration was given to a sanction short of dismissal.

Summary of Respondent’s Case:

Opening the respondent’s case, Mr McCormack said that the complainant completed regulatory training in December 2017 and in January 2018, he signed a form to confirm that there were no conflicts of interest between him and the business of his employer. In March 2018, following the snow storm known as “the beast from the east,” the complainant and his Line Manager had a discussion about work to be made up as a result of the time off during the bad weather. It appears that there was a misunderstanding regarding whether the complainant was to make up for the work not done or the time not worked. It was then that the complainant set up his company. Evidence of the Investigation Manager The Investigation Manager is an Area Technical Development Manager in the UK. The Regional Manager asked him to carry out an investigation into a possible conflict of interest by the complainant. In his evidence, he said he received a pack of information from the complainant’s Line Manager in advance of the investigation meeting on November 29th. He said that the complainant brought a CRO document to the meeting that showed that he set up a company on March 5th 2018. The complainant’s travel and mileage record during July 2018 was also raised at the meeting but, following his explanation concerning his travel record during the 10 days under investigation and one typographical error, no action was taken regarding this. The Investigation Manager said that, after the meeting on November 29th, he phoned the complainant to ask him to confirm the work his company carried out. He said that he established that the complainant’s company was established to do health and safety audits and training and that this work could have been done by a division of the respondent’s business. The Investigation Manager said that he sent a note to the complainant’s Line Manager and to the HR Department and he had no further involvement in the matter. Cross-Examining of the Investigation Manager Following his direct evidence, the complainant cross-examined the Investigation Manager. He agreed that he and the complainant’s Line Manager were colleagues. He said that, in advance of the investigation meeting, the Line Manager sent him 57 pages of documents. The complainant asked the Investigation Manager if the respondent had ever offered health and safety audits or training in Ireland and he replied that it had not. He agreed that following the investigation meeting on November 29th, he phoned the complainant who told him that he had done health and safety and audit work for a company where he used to work. He agreed that the complainant told him that he regularly called in to this company to catch up with his friends. The complainant asked the Investigation Manager if he had any concerns that during his employment with the respondent, he wasn’t doing his job. The Investigation Manager replied that he was concerned that there was a potential conflict of interest; however, he did not reply when he was asked what the conflict was. Evidence of the Line Manager The complainant’s Line Manager made the decision to dismiss him on December 11th 2018. He said that the complainant has reported to him since March 2014. He said that he did quarterly reviews with the complainant and his performance was very good. Mr McCormack asked the Line Manager about an email that the complainant sent to him and the Regional Manager in March 2018. The Regional Manager is the Line Manager’s boss. The Line Manager said that the complainant thought he was being asked to make up the lost days, but he expected him to make up for the work not done. In July 2017, the Line Manager said that he sent out a Conflict of Interest Disclosure Form to the 25 engineers who report to him. A year later, in July 2018, one of his team told him that the complainant had set up a company. He said that he checked the CRO record and he established that the complainant set up a company in March 2018. He notified the Regional Manager. In September, he said that he gathered together the information required for an investigation and in mid-November, he gave the documents he had compiled to the Investigation Manager. On November 22nd, the Investigation Manager sent the complainant a letter by email, and asked him to attend an investigation...