ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000731

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 16/03/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant who was employed as a retail assistant by the respondent and was paid €8.65 per hour and worked an average of 30 hours per week submits that her dismissal was discriminatory on the basis of her trade union membership in contravention of this statute, the Constitution of Ireland and European Convention of Human Right’s Act, 2003. She began working for the respondent on the 13^th of October 2014 and was dismissed on the 18^th of September 2015. She joined the SIPTU trade union early in 2015 and sought its assistance in pursuing her statutory rights in respect of the provision of written terms and conditions of employment. She was successful in the pursuit of her complaint to the Right’s Commissioner Service of the LRC. On May 3^rd she was issued with a written warning (dated 20^th of April and handed to her on the 3^rd of May).

She appealed the matter internally but no appeal process was conducted. She asserts that the respondent in issuing her with the warning on the 3^rd of May advised her that the warning was given because he had received two letters (she presumes that he was referring to the letter from her trade union informing the respondent of her intention to make a complaint under the Terms of Employment Act, 1994 and from the LRC informing him of receipt of her complaint).

On the 7^th of September she received a letter inviting her to a probation review meeting raising five issues of concern. In the main the issues were non-specific and some were the subject of the previous warning. The letter went on to advise that the meeting might lead to an extension of her probationary period or in other steps being taken up to and including her dismissal. She was advised that she could have a work colleague but not an external party attend with her thereby debarring the attendance of her trade union in contravention of the LRC Code of Practice on Grievance and Disciplinary Procedures (S I 146 of 2000). She attended the meeting on the 9^th of September and was handed a letter of dismissal on the 22^nd of September. The letter informed her that she had a right of appeal within 5 working days of the date thereof. She lodged her appeal on the 28^th inst., which was four working days following receipt and as she had heard nothing by the 6^th of November her trade union wrote to the appeals officer. The appeals officer wrote to the trade union on the 17^th of November enclosing a copy of an e-mail and letter rejecting her appeal (both enclosed). The complainant never received either document and an examination of the documents suggests that both were created on November the 17^th.

It is accepted that the complaint must fail unless it resulted wholly or mainly from the complainant’s trade union membership. I am asked to note that the contract provided for a six month probation period (ending on the 12^th of April 2015) well before the dismissal or the warning of the 3^rd of May. No minutes of the meeting of 9^th of September were provided. It was put to the respondent by letter of 6^th of May that she was being discriminated against by virtue of her trade union activity and it is noteworthy that no denial was made. The probationary review meeting of 9^th of September was a disciplinary hearing. She was denied her rights at this meeting and I am asked to note that the follow up letter refers to the meeting as a probationary review. No right of appeal against the disciplinary sanction was afforded in extremely harsh circumstances. The respondent’s failure to adhere to its own grievance and disciplinary procedures which are at one with Code of Practice referred to above indicates that it wished to obfuscate its real reason for dismissing the complainant.

Respondent’s Submission and Presentation:

The respondent submits that the complainant’s dismissal was justified on numerous grounds which were patently unrelated to her membership of a trade union and in the circumstances the dismissal was fair and reasonable. The respondent acknowledges that it was aware that the complainant was a member of a trade union and that it had been so advised in writing. It is noted that the burden of proof falls to the complainant in this case and that the same must be established on the balance of probabilities.

There have been an alarmingly high number of negative issues applying to the complainant’s employment since commencement. She was originally recruited to work at another of the respondent’s stores but within a relatively short period of time a number of her colleagues complained on the basis that she was extremely argumentative, disruptive, refused or failed to properly follow instructions, demonstrated lack of common sense, lack of empathy, poor engagement and inability to work as part of a team. She was therefore moved to a larger store where she could be monitored by her manager and the MD with a view to performance improvement. She continued to display considerable inflexibility in several respects. She failed to participate as part of the Company’s entry in the annual St Patrick’s Day Parade in 2015. She was rude and shouted in front of the Directors children and customers during a discussion in relation to the matter of her attendance at the Parade on the 15^th of March. She denied any knowledge of the requirement to attend in opposition to the view expressed by her manager. She had been the subject of numerous (individually relatively minor) customer complaints (list provided). She refused to sign her contract of employment despite having made a complaint in relation to the provision of the same. These same matters were referenced at a Right’s Commissioner hearing on the 25^th of June.

The complainant was deeply unpopular with both colleagues and management. The respondent felt constrained in that it did not wish to prejudice the position in relation to two separate complaints she had made to the Right’s Commissioner Service of the LRC and whenever recommendation and decision had issued it was acutely aware of the necessity to arrive at a determination in respect of her long term employment. In the event it invited the complainant to a probation review meeting on the 7^th of September. The meeting took place on the 13^th inst. however there was no alteration in her general attitude towards the respondent and she generally expressed dissatisfaction with her employment. She indicated that she was actively seeking alternative employment. She was subsequently dismissed and failed to avail of an opportunity to pursue an appeal within the allotted time frame.

The first year in any employment is generally acknowledged as one which affords an employer an opportunity to gauge whether or not an employee is a suitable fit for its business and this is reflected in the service time frames set out in the Act. Nor is it uncommon for employers to make decisions not to retain employees, shortly prior to those employees gaining tenure pursuant to the provisions set out in the Act. It would set at nought the balanced protections set out in the Act if a sub-standard, inflexible and under-performing employee could accrue rights otherwise unavailable to other employees, by simply joining a trade union and baldly asserting the protection afforded by the Act.

Decision:

It is clear to me that the dismissal in this case was a sham of the highest order. No allegation having any material substance was put to the complainant. No proper procedure whatsoever was followed (she was not provided with any material detail in respect of the allegations made against her) and she was clearly the victim of an abuse of process of the highest magnitude. The dismissal in this case was entirely unfair and devoid of substance or proper procedure.

The question arising therefore is whether or not the dismissal resulted wholly or mainly from her membership of a trade union.

It is reasonable to conclude that the complainant’s membership of the trade union was a source of irritation to the respondent if one accepts as I do the submission of the complainant in respect of the discussion she had with the MD on the occasion of the presentation of the written warning on the 3^rd of May 2015. The respondent was in my view willing to take unfair and unreasonable action against the complainant on foot of the notification of that membership and used the same as part of the justification of the subsequent unfair dismissal.

Accordingly I find that the complaint is well founded. The appropriate remedy is one of compensation in the amount of €6,500 (say six thousand five hundred euro).

Dated:   7 October 2016