ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002340

Dispute for Resolution:

Date of Adjudication Hearing: 27/10/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant was initially employed by the respondent on May 5^th 2015 as a Payroll and HR Administrator at a salary of €27,500. The role involved preparation of material for payroll but another colleague was charged with the final completion of the payroll function.

While the numbers were subject to seasonal variation there could be as many as four hundred payroll recipients to be processed.

That other colleague left the company in October and the role of the complainant was extended to take in her additional functions. Payroll was processed using MS Excel rather than a dedicated payroll software product. At this point a further person was recruited to do the work the complainant had originally been doing.

She passed the six month probation period on November 5^th 2015 and thus was not subject to any adverse comment by the respondent. The complainant assumed that everything was going well. This was reinforced by the fact that she was paid her Christmas bonus for that year some weeks later.

She does not dispute that she was having some difficulty coping with the higher level duties.

On January 8^th the respondent told her that it intended to reduce her salary by €2,500 because of those difficulties and the fact that she would be required to return to her original level of responsibility, despite the fact that her salary was predicated on this (lower) level of responsibility at the time of her appointment.

On January 18^th 2016 she requested a review of the decision to reduce her salary and the respondent said that it would carry out a ‘Capability’ review. This took place on January 25^th and she was told at that meeting that ‘a report’ would be written.

She became ill and was on sick leave the following week, diagnosed with stress.

On her return on February 8^th she went through the return to work protocol but the following day was invited to a meeting later that same day (at 17.25) at which she was told the report had been competed and that ‘it was not good news’.

On conclusion of the meeting, and without being given prior sight of the report she was handed a letter terminating her employment. While she was offered a copy of the report she declined it as the decision had clearly been made prior to the meeting without any input from her.

She was offered a right of appeal which she availed of. However the hearing, which lasted only a few minutes resulted in a confirmation of the decision. Among the reasons given was that she had not agreed to accept the report (just referred to).

The complainant feels that the respondent felt that the colleague who had replaced her in October was identified as being more suitable to the payroll job and that the company engineered her termination as a result.

Respondent’s Submission and Presentation:

The respondent’s representative was sent notice of the hearing on September 28^th 2016 but did not attend the hearing. No explanation was offered as to why

Findings and Conclusions:

This is an application under the Industrial Relations Act. The employment of the complainant was terminated after approximately nine months and therefore she does not fall within the jurisdiction of the Unfair Dismissals Act.

Nonetheless, a termination of employment is required to pay some heed to the principles of fairness regardless of the length of an employee’s service even though the redress and remedies may be different.

Those principles include that there be substance to the grounds for terminating the employment and that the procedure used to effect the termination has some regard to the rights of the employee to a fair procedure.

On the basis of the complainant’s uncontested evidence the respondent in this case fell very considerably below what was required.

There is no doubt that the complainant was experiencing difficulty in the discharge of the higher level duties. However, there was no justification for the dramatic reduction proposed in her wages. She was merely returning to the level at which she had been recruited and no basis existed for any down grading of her position.

The ‘report’ which was undertaken and which provided the basis for her termination is also a document shrouded in mystery, and it appears the complainant had no input into it.

However, all of this pales into insignificance when set in the context of the delivery of the news of the termination to her. It would not have taken much in the way of simple courtesy, to say nothing of fair procedure to give the complainant advance notice of the contents of the report, seek her reaction, and then convene a meeting to review the situation.

Then, if the termination of her employment was still under consideration, a further meeting with this explicit purpose notified to her in advance should have been arranged.

In all the circumstances the complainant was unfairly dismissed and the self styled capability review was little more than a thinly veiled cloak to achieve it. Not only was there no substance to the allegations about her capability but the procedure followed was a totally unacceptable breach of her rights to fair procedure.

The complainant has succeeded in gaining employment after two month’s of unemployment in the course of which I a satisfied that she made diligent efforts to gain employment, ultimately successfully. Therefore her losses are €4,500 approximately.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons set out above I uphold complaint CA-00003182-001 and find that the complainant was unfairly dismissed. I recommend that she be compensated by the respondent for her losses in the amount of €4,500.

Dated:   12^th December 2016