This case is an appeal by QPark Ireland Ltd (the Respondent) against the decision of the Adjudication Officer who found that the Complainant had been unfairly dismissed and was therefore awarded compensation in the sum of €18,000. Mr. Fitzpatrick, ‘the Complainant’, was a Parking Host for QPark Ireland Ltd from November 2013 to August 2018.

The Complainant was dismissed following an investigation and disciplinary procedure for ‘gross misconduct’ following an incident with a customer and also because he admitted to smoking in the Respondent’s car park premises.

Prior to his dismissal, the Complainant had a blemish free record with the Respondent. The Respondent received many mails praising the Complainant’s customer service, including changing flat tyres. The Complainant submitted that he was fully committed to contributing to his employer’s success.

 The Complainant maintained that the investigation into the incident was seriously flawed. He never received a copy of the original complaint and his right to know his accuser was denied. The Complainant also argued that he did not treat the allegation of smoking in a flippant manner. The disciplinary procedure and code of conduct were provided to the Complainant only at the investigation meeting stage.

The Respondent outlined in their submissions that on one occasion the Complainant became angry and aggressive with a customer, specifically slamming his hands on the bonnet of the customer’s car plus shouting and gesticulating at the customer. CCTV footage of this incident was provided to the court. The Complainant then went on to smoke a cigarette after the confrontation, contrary to the law and company rules.

The Respondent maintained that a thorough investigation took place. The Complainant was represented, and all allegations and evidence were put to him and all mitigating circumstances were taken into account. The investigation found on the first charge that there had been shouting and abusive body language towards the customer. On the issue if the Complainant’s smoking, the Complainant had admitted that he broke the law. The Investigator found that the incident with the customer had caused reputational risk.

The Complainant was then invited to a disciplinary hearing which resulted in the Complainant being summarily dismissed.

The Labour Court commented that the Court need only concern itself with the procedures used by an employer in deciding on a dismissal. If the very basis for instigating a process of discipline/investigation does not stand up to a test of reasonableness that cannot be ignored by the Court.

The Court highlighted that an exchange of words between somebody on foot and the driver of a car that had driven in his direction can scarcely be a surprise nor, in the view of the Court, could it be considered a reasonable basis for a decision to dismiss an employee. Therefore, the court could not regard it as the action of a reasonable employer to decide to dismiss an employee in the circumstances of the incident concerned.

The Court accepted that smoking in an enclosed space is a breach of the law and that the Respondent’s own policies make clear that it is an act of gross misconduct that can lead to dismissal. In context of the circumstances, the court opined that a lesser penalty would have been applied by the Respondent if they had viewed the incident with the customer as a frightening experience for the Complainant, which is what the CCTV suggests, rather than as a dismissible offence.

Therefore, the Court finds that, taking all factors into consideration, a reasonable employer would not have dismissed the Complainant and that the dismissal was unfair. The maximum award that the Court could make is two years’ pay, minus the earnings of the Complainant while he was employed part-time. In total, this exceeded €51,000. However, by smoking on the premises, the Complainant contributed to his dismissal.

Upon considering the circumstances, the Court concurred with the level of compensation awarded by the Adjudication Officer in the Workplace Relations Commission at €18,000 and directed that this amount be paid by the Respondent to the Complainant.
https://www.workplacerelations.ie/en/cases/2021/may/udd2135.html