EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Maura Penkert UD338/2012
against
Emerald Contract Cleaners (Irl) Limited. T/A Emerald Facility Services
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Mr F. Dorgan
heard this claim at Waterford on 8th January 2014 and 13th May 2014
Representation:
Claimant: Ms Geraldine Malone, SIPTU Organiser MISC, Liberty Hall, Eden Quay, Dublin 1
Respondent: Sharon Carey, HR Manager for the respondent.
Respondent’s case:
The respondent is a contract cleaning company and the claimant was employed as a cleaner from 5th August 1997 until she was dismissed with immediate effect on 1st September 2011 for gross misconduct.
Having had three written warnings for separate incidents since 5th July 2010 the claimant was dismissed on 1st September 2011 for refusing to carry out the instructions of her manager.
The Tribunal heard that the manager instructed all staff in relation to revised working procedures insofar as staff were to change the area within the building where they cleaned. The claimant refused to change her area of work and prevented others from changing also.
A letter of dismissal issued to the claimant dated 1st September 2011. This letter informed the claimant of her right to appeal this decision. However it was the evidence of the Manager that although the claimant appealed her dismissal this appeal was never dealt with.
Claimant’s case:
The claimant told the Tribunal that she did not refuse to change from one area within the building to another but did not go to the area she was directed to go to.
One of the warnings received by the claimant was later rescinded according to the claimant and another witness called on her behalf. However it was denied by the respondent that this warning was rescinded.
Some months prior to her dismissal the claimant was told that she must retire but when she refused to do so the respondent allowed her to continue to work.
It was the claimant’s position that she was unfairly dismissed without just cause and in contravention of fair procedures and natural justice.
Determination:
The Tribunal is faced with a considerable conflict of evidence between the Parties on a number of fundamental issues of fact in relation to this Claim. The versions of events given by the parties in relation to these issues are irreconcilable. On balance, the Tribunal prefers the evidence of the Respondent’s Witnesses.
Further, on her own evidence, the Claimant failed to follow a lawful instruction given by her employer.
On the 29th of August 2011 the Claimant failed to go to the work location directed by her Employer. She knew she was required to go there but opted, instead, to go to a location preferred by her. This is a matter that the Respondent was entitled to investigate and proceed to a disciplinary phase if appropriate.
However, the Tribunal is of the opinion that proper procedures were not adhered to in this matter and that the Claimant was denied due process and a fair hearing.
There is no evidence before the Tribunal of a proper investigative process nor is the Tribunal satisfied that the appropriate disciplinary meetings were held. The Claimant’s Appeals were not properly dealt with nor was the Claimant allowed the appropriate representation even when she was insistent that she required this representation.
It is clear to the Tribunal that the relationship between SC and the Claimant was a fraught one and broke down quite early on. The Tribunal is of the view that it was inappropriate for SC to act for the Respondent Company throughout the process. As the Claimant had expressed a grievance as regards SC it was not appropriate that she conduct the Disciplinary Process such as it was.
In the circumstances, the Tribunal determines that the Dismissal was unfair in this instance and awards the Claimant compensation in the sum of €5,000 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)