ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001344

Dispute for Resolution:

Date of Adjudication Hearing: 15th April 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 6^th January 2016, the complainant referred a dispute to the Workplace Relations Commission pursuant to the Industrial Relations Act. The dispute was referred to adjudication on the 15^th April 2016. The complainant appeared in person. Conall Dee, IBEC represented the respondent and three witnesses attended on its behalf.

In accordance with Section 13 of the Industrial Relations Act 1969 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 outlined that he commenced employment with the respondent on the 1^st October 2015 and this came to an end in the 22^nd December 2015. The ending of his employment came shortly after a named supervisor commenced at the respondent.

The complainant described his role as a warehouse operative role where he received and asset tagged product received by the respondent's client. He had had no issues in the workplace and had been awarded health and safety champion. A manager of the respondent's client had complimented him on his performance. The supervisor commenced employment on the 13^th December 2015 and the complainant said that this supervisor took an instant dislike to him. They had only met briefly on this day.

Describing the events of the 18^th December 2015, the complainant said that at about 4pm, he was asked to go to a back area of the warehouse where he had a conversation with the supervisor. In this, the supervisor asked how long the complainant’s probation period was and challenged the complainant for not being sure whether it was three or six months. While the supervisor said that the complainant had potential, he also told him that he was not wanted on his team and that his probation was being extended. The supervisor said the complainant’s attitude was bad; the complainant asked him for examples of this and also asked for the assistance of HR. The complainant ended the conversation by saying that he was not comfortable in continuing this conversation without the presence of HR. The complainant outlined that he then walked away.

Addressing other health and safety issues, the complainant acknowledged that the supervisor had mentioned the high-vis issue with him on the 17^th December. The complainant said that he had also identified six safety hazards in the workplace, for example the issue of sockets near a loading ramp.

After the incident of the 18^th December, the complainant emailed the facility manager and they met in the 22^nd December. He said that his probation had been extended despite there being no probation review and no input from his team leader or from client management. At the meeting, the supervisor said that the complainant had been aggressive and had not complied with health and safety procedures. The complainant said that unknown to him this meeting had become a disciplinary meeting and the facility manager had told him that he had to make a choice between the supervisor and the complainant. He told the complainant that he was being dismissed and was told to leave the building.

The complainant acknowledged receiving a pay cheque in January 2016, but was not clear whether this was notice pay or annual leave owed to him. While he received a P60, he did not receive a P45. He outlined that he was looking for recognition of the unfairness of the dismissal as well as compensation for his losses. He was still looking for work and had to explain the abrupt end of this employment with the respondent.

In reply to the respondent, the complainant outlined that he had raised a grievance because his probation was being extended when there had been no procedure to assess his performance. The meeting of the 18^th December had been held in an inappropriate place, a 4,000 square foot warehouse with significant echoes. There had been multiple other meetings in the office, only some 150 metres away. He denied that he had invaded the supervisor’s personal space in this meeting and asked for the CCTV. He had also asked to speak to someone from HR and it was the supervisor who said not to contact the client manager. The complainant said that he was based in an office adjacent to the client manager. When he returned to the office, the client manager asked him what had happened. He replied that his probation was being extended. Other colleagues had asked why the complainant had been brought out of the office to a meeting in the warehouse. He had not known the purpose of the meeting. The complainant outlined that he thought that there would be a team review at the end of his probation to assess performance. No document had been prepared in relation to the end of his probation. In respect of the comment made to two contractors, the complainant said that this was banter and they had called him “Marv” and he had retorted by addressing them as the “Mitchell brothers”. He had raised his voice because this took place in the large warehouse.

The respondent outlined that he had been blindsided by the meeting of the 22^nd December 2015. The supervisor had accused him of contacting the client; he denied this and that the client manager asked him a question, which he answered. The facility manager said that the supervisor was hired to do a job and that it came down to a choice between the supervisor and the complainant. It took 15 minutes for the complainant to be escorted off the premises. The complainant stated that the incidents of the packaging, the hair comment and the laptop bags all occurred on the 21^st December. In closing, the complainant said that he had taken on additional duties and responsibilities and had contributed to improving health and safety. There had been no issues regarding his performance.

Respondent’s Submission and Presentation:

The respondent denies the claim and states that the complainant was dismissed on the grounds of insubordination and for endangering the respondent’s relationship with the client. The respondent provides an in-house IT, mechanical, electrical and logistic services to a client in the data services industry.

The respondent outlined that the purpose of the meeting of the 22^nd December 2015 was to respond to the complainant's email. While it was not a disciplinary meeting, a decision to dismiss the complainant was made at the meeting. The facility manager outlined that the client manager had approached him at 11.30am that day to say that a member of the respondent staff, i.e. the complainant, had mentioned his grievance with the respondent. The client manager queried why staff of the respondent should be raising issues with the client and that they were not happy. At the meeting, the complainant raised his grievances and they discussed the health and safety issues raised by the supervisor. They also discussed comments the complainant had made to colleagues in the warehouse. The facility manager acknowledged that there had been no negative feedback from the team leader. The supervisor was a new role and created because the work was ramping up. The facility manager said that the complainant was not dismissed because of misconduct, but because of insubordination and because of the direct contact with the client. He said that the relationship was not working out, in particular with the supervisor. He outlined that the complainant was escorted off the premises and also required to hand in his badge.

The supervisor outlined that he commenced with the respondent at the beginning of the week of the 14^th December and met the team of six employees. He had ten years of experience in a similar role. He said that the complainant appeared to have an issue with the appointment of a supervisor from the very start. The supervisor said that he sought to address this informally, but that everything was a fight. He asked the complainant to clean as he went, but the complainant replied that it was all about tending to the product. The complainant did not accept what the supervisor said, but he did eventually comply. There had been a general issue with the team not putting laptop bags away, which he sought to address. The complainant challenged the supervisor on this. The supervisor raised a comment made by the complainant to two contractors and said that this had been unprofessional. At team meetings, the complainant would not accept what the supervisor said and would challenge his statements.

In respect of the meeting of the 18^th December 2015, the supervisor said that he had sought to informally address issues with the complainant. He wanted to meet the complainant in a quiet part of the warehouse and the office was too far away. He informed the complainant that his probation was being extended. The supervisor said that he ended the meeting when the complainant entered his personal space. The supervisor said that the extension of probation was good news for the complainant as he could have been asked to leave. He did not have the chance to give reasons for the decision. The complainant said that he would talk to the client manager and the supervisor told him not to do this. The supervisor said that he telephoned the facility manager after the meeting to inform him that the complainant would be in contact with him.

In respect of the meeting of the 22^nd December 2015, the supervisor outlined that the complainant had said that he, the supervisor, had an issue with the complainant and that the supervisor had made a call on his performance. The supervisor said that he had an issue with the complainant’s attitude on the high-vis issue and that the complainant never acknowledged that he did anything wrong. The supervisor outlined that he expected to have the complainant back after the meeting of the 22^nd December and that he did not expect the complainant to be leaving. He said that the first he knew of the contact with the client manager was in the course of the meeting and he was disappointed that the complainant had made this approach.

In reply to the complainant, the facility manager denied that he had framed this issue as a choice between the supervisor and the complainant. The complainant could not dictate how his probation would be reviewed and it had become untenable for his employment to continue. The complainant had involved the client in the respondent’s affairs and there had been a complete breakdown of trust. The respondent outlined that the incident of the laptop bags took place prior to the 18^th December 2015, the hair comment could have occurred on the 21^st December and the packaging incident took place on the 22^nd December. The respondent outlined that the complainant had been paid notice pay for the period of the end of December 2015.

Findings and reasoning:

This is a dispute referred by the complainant regarding the events leading to his dismissal from the employment of the respondent. The dismissal took place on the 22^nd December 2015. The complainant’s employment commenced on the 1^st October 2015. It is a dispute made pursuant to the Industrial Relation Acts.

The complainant outlines that his dismissal was unfair, pointing to the summary nature of the dismissal and the events of the 22^nd December. He also raises the manner in which his probation was extended and how he was informed of this on the 18^th December. The respondent denies the claim and asserts that the complainant was dismissed on grounds of insubordination and for raising these issues with a manager of the respondent’s client.

What is striking about this case is that the meeting of the 22^nd December 2015 was ostensibly to discuss the concerns raised by the complainant. The emails exchanged by the complainant and the facility manager illustrate that it was relatively informal in nature. It, however, escalated to the occasion where the complainant was dismissed from the respondent’s employment. The respondent relies on a conversation with the client manager, but it is not possible to test this evidence objectively as the only account presented of the conversation was that relayed by the facility manager.

The central issue in this case is the transformation of an informal grievance meeting to a meeting in which certain allegations were put to the complainant and he was immediately dismissed. Having regard to the Code of Practice on Grievance and Disciplinary Procedures (as provided in S.I. 146/2000), this approach is unsatisfactory. The complainant had raised a grievance and this should have been dealt with to its completion. Taking the respondent’s evidence at its height, information was relayed to it regarding a conversation between the complainant and the client manager. There was nothing stopping the respondent from immediately raising this as a separate issue to the grievance. As a matter of principle, employees should be in a position to raise grievances without the prospect of the being blindsided by unrelated issues at the hearing of those grievances. It follows that the complaint succeeds.

In assessing redress, I take account of the short duration of the complainant’s employment and the already fraught relationship with the supervisor. Taking these factors into account, I recommend that the respondent pay to the complainant redress of €2,300.

Decision:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

For the reasoning outlined in this report, I find that the claim is well-founded and I recommend that the respondent pay to the complainant redress of €2,300.

Dated:   15^th September 2016