ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001524

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

Date of Adjudication Hearing: 10/05/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Further submissions were received from the claimant’s representative confirming the claimant’s membership of SIPTU – the respondent did not offer any observations on same.

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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:

It was submitted that the claimant was dismissed for her trade union activity; she commenced employment in Housekeeping on the 30^th.April 2016 .The local SIPTU Official was in the hotel for lunch on the 26^th.June , was talking to the claimant and was observed by the Manager shaking hands with the claimant as he left.The claimant was taken to task with a colleague about a room on the 2^nd.July 2015 – later that day she was advised that the Manager did not want her cleaning rooms anymore and she would now be cleaning downstairs.The Manager refused to accept the claimant’s explanation about hoovering the stairs at a meeting on the 6^th.July 2015 – the following day the claimant hoovered 3 floors , asked her Supervisor to check them and she said they were fine.

It was submitted that “ The complainant had been a member of the Union in her previous employment .She was concerned at the number of employees that had been dismissed and gave out union application forms to her work colleagues and encouraged them to join the union on the 10^th.July 2015.”While cleaning the conservatory on the 17^th.July , the manager asked to speak with the claimant , said it was a review , that he was not happy with her work and he was letting her go.The claimant was shocked at her dismissal , referred her case to the SIPTU Official who contacted the manager – the manager refused to return his calls.On the 31^st.July 2015 , the claimant sought the reason for her dismissal in writing but the respondent failed to reply.

The union submitted that the claimant had worked for the respondent for 2 months without any complaints being raised about her work ; the claimant advanced explanations for the issues raised with her in relation to bedrooms and stairs.It was submitted that the claimant was singled out to move downstairs after the bedroom incident even though 2 staff cleaned the room .Work sheets validated the claimant’s contention that the Supervisor had confirmed the rooms cleaned by the claimant were fine.The Manager had failed to give the claimant an opportunity to respond to his allegations of performance deficits at the short meeting that took place in the conservatory on the 17^th.July when the claimant was dismissed.It was submitted that issues in relation to the claimant’s work only arose after she was seen meeting with the SIPTU Official and she was dismissed one week after handing out union applications to her colleagues.The respondent had failed to offer specifics in relation to the alleged performance shortcomings when he wrote to the claimant on the 31^st.July.Only 2 incidents had been raised with the claimant and they would not justify grounds for dismissal.It was contended that the union had shown that the decision to dismiss the claimant arose solely from her trade union activity.

Respondent’s Submission and Presentation:

It was submitted that the onus rested on the claimant to prove Trade Union membership and how the membership related to her dismissal.It was submitted that the claimant was dismissed by reason of poor performance ; that she had been moved to clean common areas because of poor performance – where it was less pressurised and less attention to detail was required.It was advanced that an appraisal review had taken place with the Manager on the 17^th.July 2015 – despite her move to communal areas , the claimant’s performance had not improved – consequently her employment was terminated at this meeting.The respondent invoked the provisions of UD672/91 in support of their position.The respondent categorically refuted the allegation of dismissal for trade union activities – it was submitted the claimant was dismissed for poor performance and that where the dismissal does not result ‘wholly or mainly’ from the employee’s membership of a trade union , the dismissal is not deemed to be unfair.

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.

[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Decision:

I have reviewed the evidence presented at the hearing and noted the follow up documentation submitted by the union which confirms the claimant was a member of SIPTU while in the respondent’s employment.

The parties offered polarised accounts with respect to performance issues and the exchanges that took place on the date of the claimant’s dismissal.The manager was adamant that he did not know the union official referred to by the claimant and he was unaware that the claimant was a member of a trade union.The respondent’s witness asserted that the claimant’s performance was not up to standard and advised that she did not document the performance shortcomings as they were not significant and she wanted to give the claimant another chance in the public areas of the hotel.

While the manager alleged in his letter of dismissal on the 31^st.July 2015 that he had given careful consideration to the claimant’s responses at the meeting , this was categorically denied by the claimant who asserted that she was given no opportunity to defend herself   and was told she was being let go because of his unhappiness with her work.On the basis of the direct evidence given by both parties at the hearing I found the claimant’s version of events to be more credible and convincing than the version advanced at the hearing by the respondent and the version documented in page 8 of their submission. If as the respondent insists the dismissal arose because of performance deficits there was an abject failure on the respondent’s part to adhere to their own disciplinary procedures .Additionally I found the reliance by the respondent on 2 incidents – which were never formalised by way of documented warnings – to justify dismissal to be unconvincing.The claimant presented documented work sheets to support her contention that for the early part of her employment there were no difficulties with her performance.IThe claimant’s contention that she was the only one taken to task about the bedroom incident in which her colleague was involved was not refuted by the respondent.

In the course of the hearing the manager referred on a number of occasions to the claimant disturbing other staff members – he referred to this in his record of the dismissal meeting on the 17h.July.When asked to elaborate on what was meant by disturbing other staff he asserted that she was constantly telling them to watch their back or they would be dismissed.The claimant denied this- she stated that she had distributed union application forms amongst her colleagues and that the manager would have been aware of this as it would have been relayed to him by her colleagues.

I note the respondent issued the claimant with a contract of employment on the 5^th.July – 9 weeks after she commenced employment and 2 weeks before she was dismissed.No plausible explanation was offered for furnishing the claimant with a contract in circumstances where there were significant issues arising in relation to her performance.

In all of the circumstances , I find the respondent’s defence i.e. the claimant was let go because of performance issues , to be unconvincing and consequently I find on the balance of probabilities that the claimant was dismissed for trade union activities and accordingly I uphold her complaint.I require the respondent to pay the claimant €5,000 compensation within 4 weeks of the date of this decision

Dated: 14^th September 2016