ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000938

Dispute for Resolution:

Date of Adjudication Hearing: 22nd April 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 9^th December 2015, the complainant referred a trade dispute to the Workplace Relations Commission pursuant to the Industrial Relations Acts and the Workplace Relations Act. The dispute was scheduled for adjudication on the 22^nd April 2016.

In accordance with the Workplace Relations Acts and the Industrial Relations Acts, and 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.

Complainant’s Submission and Presentation:

The complainant worked as a clerical officer with the respondent from the 24^th February 2015 to the end of her employment on the 30^th September 2015. The respondent is a hospital carrying out elective procedures. The complainant submits that her dismissal was unfair and unjust, as well as being in breach of natural justice. The complainant relied on the Labour Court decisions of Viking Direct (Ireland) Ltd v A Worker LCR17042 and Irish Postmasters Union v A Worker AD115 to assert that fair procedures and natural justice apply to dismissals occurring during periods of probation.

The complainant signed a contract of employment dated the 23^rd February 2015. On the 27^th May 2015, she undertook a probation review. She outlined that this took place on the day after a staff meeting, where the complainant had raised issues relating to flexi-time and her line manager had expressed dissatisfaction regarding the issue being raised in this way. The review also took place after the line manager had been on sick leave for two weeks, something the line manager had attributed to work related stress. The review indicates that complainant was “exceptional” in one category, “exceeds expectations” in six categories, “successful” in two and “below expectations” in one. This latter category was “communication/listening”. There is no entry made to the action plan attached to the review document. The complainant said that she did not accept this finding as she had 17 years of sales experience and had a role dealing with the public with the respondent. She believed that the low rating for communication was related to her raising the flexi-time issue at the staff meeting. She outlined that no action followed the review and she continued as before.

The complainant outlined that she undertook a second review on the 19^th August 2015. In this, the complainant was issued four scores of “exceptional”, four of “exceeds expectations”, one of “successful” and one of “below expectations”. This last rating referred to “communication/listening”. She said that she did not recall signing the points raised in the action plan relating to communication and annual leave and indicating a review date of the 30^th September. She acknowledged that she and the line manager had discussed her upward regrading. The complainant outlined that she believed that this poor rating was related to an application she made for annual leave. She had initially booked annual leave but was asked to defer this by the respondent. She later sought to take leave in order to receive medical treatment. Her line manager did not forward this request to HR. During this time, she was in hospital but continued to receive text messages from the line manager. The complainant said that she availed of the annual leave as she had been working since February without taking any leave.

The complainant said that her line manager had lodged a grievance against her and she was never given a chance to respond to it. Following the making of this complaint, she was moved to a different department, reporting to another manager. She had worked here previously, covering annual leave, and performed well. She attended a meeting with HR but when it transpired that this was to be a disciplinary meeting, her union representative asked that the meeting be adjourned. This took place on the 29^th May 2015 and she was dismissed from work the following day. She subsequently learnt that the line manager had withdrawn her grievance complaint.

Addressing the circumstances of her dismissal, the complainant outlined that she was summonsed to a meeting by the Financial Controller on the afternoon of the 30^th September 2015. The complainant had not met this colleague before and did not know the location of her office. She met with the Financial Controller, who informed her that she was being dismissed with immediate effect. The complainant asked for a reason and her performance reviews was cited. The complainant was required to leave the premises immediately and a colleague subsequently offered to collect her handbag, coat and car keys. Following these events, the complainant sought to appeal the decision to dismiss her. No appeal had been offered in the letter of dismissal and the respondent was initially reluctant to grant one. An appeal hearing was heard on the 4^th November and the complainant agreed that the notes provided by the respondent to the adjudication were an accurate record. They discussed the communication issues raised in the performance reviews. The complainant later received a letter from the respondent, dated the 4^th December, confirming the dismissal.

In respect of loss, the complainant said that she had been dismissed from a permanent, full-time job and that there had not been an investigation into anything. No-one had sat down with her to go through the issues and she had never met the Director of HR, despite the correspondence she had received from her and her office. She had done an excellent job with the respondent. She said that she was now working in another hospital and had a temporary job. She commenced work there on the 16^th November 2015, but because she had to work a back month, Christmas was very difficult for her. She had to avail of emergency payments.

The complainant outlined that on the basis of the case advanced by the respondent, the dismissal was based on the issues raised by the line manager in the grievance, which was later withdrawn. Despite having submitted a data access request, the complainant had never been supplied with the three file notes of incidents alleging issues arising with the complainant’s behaviour. No investigation had ever been carried out into these issues and they had been used to justify the dismissal. Each performance review had come the day after an incident between the complainant and her line manager (the first being flexi-time and the second being annual leave). The complainant was dismissed the day after the meeting of the 29^th September 2015 into the line manager’s grievance. This was a breach of natural justice as the complainant ought to have been heard.

It was further submitted that the reason given by the respondent for the dismissal was conduct. It was not true that the complainant’s conduct had been unacceptable. The conduct issue had not been raised in the performance reviews. The complainant had received positive reviews from other managers.

Respondent’s Submission and Presentation:

The respondent outlined that the complainant was dismissed because of performance issues identified during the probationary period. It was submitted that while the line manager had submitted a grievance complaint against the complainant, this had not been a factor in the decision to end the complainant’s employment. The complainant relied on the Supreme Court authorities of Hickey v Eastern Health Board [1991] 1 IR 208 and Sheehy v Ryan [2004] ELR 87 that natural justice does not apply in dismissals not related to a disciplinary reason. It was submitted that the complainant’s contract of employment provided for a nine-month probation period, during which the respondent was entitled to dismiss the complainant.

In respect of the performance reviews, the respondent outlined that the complainant had signed the three pages of the performance review, including the page detailing an action plan and indicating the 30^th September 2015 as the next review date. In respect of the review of the 27^th May, the HR Director said that the issue identified in the review was conduct, but this was not a major issue. This was why no action plan was prepared following this review. The HR Director referred to three sets of notes prepared by the line manager, which detail issues regarding the complainant. They relate to the complainant refusing to do typing, her refusing to move from a desk and a conversation where the complainant shouted and swore at her. Following these incidents, a subsequent review was carried out on the 19^th August. It was decided to allocate six further weeks for the complainant to improve her conduct and the 30^th September picked as the next review date. There was an incident in early September, where the complainant took a personal call at work and no improvement in her conduct.

Addressing the ending of the complainant’s employment, the HR Director said that this was a decision made by her, a named HR colleague and the line manager. It was made shortly before the 30^th September 2015. The factors considered were the file notes prepared by the line manager regarding the complainant’s conduct and a report from a named colleague. It was felt that by this stage a few more days would not make a difference, so the complainant was dismissed on the date on the next review. The respondent expects people to conduct themselves well and to treat colleagues with dignity and respect. The HR Director said that the complainant’s behaviour had become worse over time and between the two reviews. She acknowledged that the complainant was awarded the same score in the May and August reviews for “communication/listening”. The HR Director outlined that the Financial Controller was assigned to inform the complainant of the end of her employment because the HR Director was on annual leave on this date. The respondent outlined that it was irrelevant that the line manager’s grievance was later withdrawn and that the file notes she had prepared by part of the normal duties of a manager. The complainant had not worked for long enough with other managers to include their views in their assessment of her future with the respondent.

At the appeal, the Assistant CEO had also confirmed that the complainant had received all documentation at the commencement of the hearing. The appeal upheld the decision to dismiss the complainant. Commenting on the appeal, the HR Director said that the Assistant CEO had approached her and discussed the appeal. He had carried out his own investigation and she did not know whether he had seen the three file notes submitted to the adjudication.

Findings and reasoning:

This is a trade dispute advanced by the complainant pursuant to the Industrial Relations Acts. The complainant was employed as a clerical officer by the respondent from the 24^th February 2015 to the 30^th September 2015. The complainant asserts that her employment was terminated unjustly, unfairly and in breach of natural justice. The respondent asserts that the dismissal occurred during the probationary period and that it was entitled to dismiss the complainant. Furthermore, the grounds of the dismissal did not relate to any disciplinary matter and the principles of natural justice do not apply. The respondent relies on the Supreme Court authorities of Hickey v Eastern Health Board and in particular the principles promulgated in Sheehy v Ryan that “an employer is entitled to dismiss an employee for any reason or no reason on giving reasonable notice.“

In the course of the adjudication, the respondent raised issues relating to the complainant’s conduct and performance, in particular in the notes contained in appendices 4, 6 and 8 of the respondent’s booklet. The appendices contain notes relating to incidents of August and September 2015 involving the complainant and are authored by the complainant’s line manager. I understand that the first occasion these notes were shared with the complainant was the day of the adjudication. I also understand that they were not presented to her as part of her appeal, nor provided pursuant to a data access request. The contents of these three appendices relate to insubordination, bad language and lack of application to the duties of the role. They are serious issues. According to the evidence of the respondent, the notes were considered in reaching its decision to dismiss the complainant.

Also during the adjudication, I was supplied with policies of the respondent, entitled “Probationary Review” and “Disciplinary Policy”. At 7.1.16 the Probationary Review policy provides that the Director of HR will either confirm the satisfactory completion of the probationary period, or indicate unsatisfactory completion “therefore invoking the disciplinary process up to and including dismissal.” This policy provides for five possible ratings (and in declining order): “Exceptional (Outstanding), Exceeds Expectations, Successful, Below Expectations and Improvement Required.” The Disciplinary Procedure lays out procedures for dealing with poor performance, including the issuance of verbal warnings, written warnings and where performance has not improved, dismissal. The policy provides for a right of appeal. Moreover, the contract of employment, exhibited in the papers, refers to “probation period”, providing that the complainant is subject to a nine-month probation period. According to the document, the complainant can either (a) be certified as satisfactory, or (b) the probation extended. The contract further provides that the complainant’s performance will be subject to regular review and “subject to discussions between you and your manager in relation to performance and conduct.” It is clear that the complainant was never subject of a disciplinary procedure and nor were the incident notes at appendices 4, 6 and 8 shared with her. It is difficult to see how the respondent complied with the provisions of the above-mentioned procedures and contract.

The next issue of concern is the manner of the complainant’s dismissal. Even taking the respondent’s case at its absolute height, there was no basis for the summary and humiliating dismissal of the complainant. In the course of a working day, the complainant was told by the respondent financial controller that she was to be immediately dismissed. She was told to leave the premises. Her personal effects, including her handbag, coat and car keys, were to be collected and given to her by a colleague. Her time with the respondent came to an end. Even taking everything the respondent advanced as true (including the contents of appendices 4, 6 and 8), there is no basis for the manner of the complainant’s dismissal.

The complainant’s line manager did not attend the adjudication. All I have before me from the line manager are documents produced by her and they are, essentially, hearsay. The documents are the above-mentioned appendices as well as the probation review reports. The complainant cannot challenge or probe the line manager’s evidence. I cannot inquire into her evidence. The complainant asserts that she did not see the comments drafted by the line manager to the second page of the May 2015 Action Plan. Even if the complainant is incorrect in that she did see these comments, there was no further review of her performance carried out by the line manager. The main criticisms laid at the complainant’s door are “listening/communication”. I, of course, was not present to witness the events described by the line manager. I, however, did observe the complainant at the adjudication and I struggle to see any basis for such criticisms. The complainant impressed with her professionalism as well as with her communication and listening skills.

Taking these findings together, the complainant’s employment with the respondent came to an end in an unfair manner and she suffered loss and inconvenience as a result. She was performing a role and transferred following a (later withdrawn) grievance lodged against her. No issue is raised about her performance in the latter role. According to the respondent’s assessment, her performance at work improved. She obtained one “exceptional” score in May 2015 and obtained four such scores in August 2015. Given the absence of any contradictory evidence from the line manager and the complainant’s own evidence, I find as fact that the negative scores attributed to her arose from the flexi-time and annual leave issues she referred to in her evidence. Such issues are not a basis for such an adverse performance appraisal. The respondent invokes Sheehy v Ryan, but its evidence was that its decision to dismiss was related to her conduct and performance, in particular arising from the file notes. The complainant did not have the opportunity to comment on these documents. The respondent did not comply with the procedures laid out in its “Probationary Review” and “Disciplinary Policy” documents as well as the contract of employment. Even taking the respondent’s evidence and submissions at their very height, the circumstances did not merit the complainant being summarily dismissed in the way carried out by the respondent.

With regard to the above findings, the complainant is entitled to redress in relation to this claim. The complainant suffered loss and inconvenience because of the fact and manner of the dismissal. Taking account of the length of her employment the facts of the case and the loss and inconvenience incurred by the complainant, I determine that an award of €7,000 is appropriate.

Decision:

The Workplace Relations Act, 2015 and the Industrial Relations Act require that I make a decision in relation to the above dispute. Pursuant to the findings outlined above, the respondent shall pay to the complainant the amount of €7,000 as redress for the within dispute.

Dated:   25^th July 2016