ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001792

Dispute for Resolution:

Date of Adjudication Hearing: 13/06/2016

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.

Summary of Complainant’s evidence:

The complainant had been experiencing inter-personal difficulties with her manager and sought a meeting on the 5th of February 2016 with the owner of the business to raise a grievance about how she was being treated by her manager.

This took place on February 8^th, 2016 at 8.30am and was attended by the owner, and another person who the complainant believes to be a Director and who is the owner’s husband and a solicitor.

The complainant had asked for this meeting because on several occasions she felt bullied and alienated from the other employees and wanted to resolve this issue amicably.

She was surprised that the other director was in attendance as she had asked to meet the owner alone.

More significantly she had not been told prior to the meeting that she would be meeting with two directors and so felt intimidated.

She was not given the option of bringing in anyone else as a witness.

During this meeting she explained her grievance but she (the complainant ) was accused of being a bully which she denied.

No attempt was made to try to resolve the issue and the points she made were not acknowledged.

Although the owner stated it was not a personal issue the complainant felt there was a personal dimension to it as two co-workers had deleted her from Facebook several months ago yet remained friends with her colleagues.

Along with this there were several occasions when she was treated differently from other staff members and asked to carry out tasks that others were not. She was told that after six months of employment she would be receiving a pay rise which did not materialise.

On many occasions she would go the working day without receiving any lunch breaks or would only receive ten or fifteen minutes. The owner’s explanation for this was that she paid for lunch breaks instead as this was in the nature of the industry.

Any excess hours worked went unpaid also .

After outlining her problems, the complainant was told by the Owner that her ‘hands were tied’ and she had no option to but to terminate the complainant’s employment. She feels that this is unfair dismissal as she had not been given any warnings or notice.

She says she was more then willing to try resolve the issues and talk them through which is evidenced by the fact that she was the one who called the meeting.

Although she employed by the respondent for a week short of one year she was never given a contract of employment (or statement of her terms of employment)

Respondent’s Submission and Presentation:

The Respondent did not attend. No explanation was offered for the non-attendance.

Conclusions and Findings

I have considered all relevant evidence that was laid before me prior to and in the course of the hearing.

I am satisfied that the respondent was properly notified of the hearing and failed to attend or provide any explanation for not attending. Solicitors acting for the respondent confirmed on March 4^th that they were on record and consenting to the adjudication which took place under the Industrial Relations Act.

They also raised a preliminary issue regarding jurisdiction to the effect that the complainant did not have twelve months service and therefore ‘cannot succeed in any claim for unfair dismissal’.

That letter proceeded to state that its client’s position was that ‘the adjudicator should make such a finding without the necessity and expense of an adjudication hearing.’

I address this matter first. The complainant was initially employed on February 16^th 2015. The meeting at which she was given notice of termination took place on February 8^th 2016.

The complainant wrote to the respondent’s solicitor on February 11^th requesting written confirmation of the termination of her employment, and seeking her ‘back’ week, holiday pay, wages and notice.

The solicitor replied on February 15^th confirming the termination and I find this to be the date of notice of termination. In her direct evidence at the hearing she stated that she was owed one week’s annual leave. She was also entitled to one week’s notice (see below).

Her entitlement to one week’s notice brings her within the jurisdiction of the Unfair Dismissal’s Act taking the date of notification of her dismissal as February 15^th when she was formally notified of it. On her complaint form she stated that she did not have one year’s service. This was an innocent mistake by a complainant who did not have a knowledge of the law on this point.

The same cannot be said for the correspondence from the respondent solicitor referred to above.

The writer of that letter must surely have known that the notice period would have to be factored in. In a further attempt to bypass the legal requirement to give notice the letter of termination (dated February15th, 2016) stated;

‘You are not entitled to a week’s wages in lieu of notice as you were dismissed for serious misconduct

I review this assertion below.

As to the substance of the complaint, the evidence indicated an egregious breach of the complainant’s rights to fair procedure.

The meeting at which her employment was terminated had been arranged at her request to discuss a relatively important grievance on her part.

She was in for quite a surprise as the grievance meeting turned into something quite different and something that led to the termination of her employment.

She had not been put on notice of the purpose of the meeting nor accorded any of the rights associated with such hearings.

This is all the more serious in that one of those attending for the complainant is a practising solicitor who must surely have been aware of the obligations that fall on the respondent in such situations.

Subsequent to the hearing a letter which appears to be from that same solicitor was sent to the complainant listing the reasons for her termination.

The complainant said in her direct evidence at the hearing that most of the issues in that letter had not even been discussed at the meeting on February 8^th.

If so, given that the letter appears to have been written by a solicitor who attended that meeting it raises rather serious questions.

At the very least these alleged reasons for the termination should have been notified to the complainant before the meeting. That they might have been manufactured after the event to justify the termination adds to those serious questions.

This letter is also the one which justified the termination without notice as she had been dismissed for ‘serious misconduct’.

Two points arise here. The most important is that the complainant had never been notified at any time of a charge of serious misconduct. She had not been put on notice of such a charge, nor was it discussed at the meeting, nor was she aware that she was at risk of termination of her employment.

In any event a finding of serious misconduct does not, per se, provide grounds for breaching the legal requirements to give notice. It most certainly does not in this case where there was neither an allegation nor a hearing on such a charge, to say nothing of a properly grounded adverse finding.

Leaving aside the matter of jurisdiction under the Unfair Dismissals Act, an employee is at all times entitled to some rudimentary respect and to the application of an appropriate standard of fair procedure. It was conspicuously absent in this case.

In her evidence the complainant stated that the business owner had given as one of her reasons for the termination the fact that her ‘hands were tied’. It is not clear by whom they were tied, but as the owner, one might expect that she had the freedom and discretion to make decisions of such significance on their merits.

In any event, they were not so tied that she can be excused from the responsibility to apply the principles of fair procedure in the matter of terminating the complainant’s employment

In addition the complainant had not been given a contract of employment nor a statement under the Terms of Employment Information Act, although no complaint was before me under that Act.

I find that the complainant was most unfairly treated and also unfairly dismissed, in the general meaning of that phrase although it had not been referred under the Unfair Dismissals Act.

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.

I recommend that the respondent pay the complainant €2,000 for the breach of her rights and as compensation for the general unfairness of its treatment of her, which not being an award of wages is not subject to tax.

Dated:   5^th September 2016