ADJUDICATION OFFICER DECISION/RECOMMENDATIONS

Adjudication Reference: ADJ-00007180

Parties:

Complaint/Disputes:

Date of Adjudication Hearing: 14/08/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The aforesaid complaint under Section 8 of the Unfair Dismissals Act 1977 and disputes under Section 13 of the Industrial Relations Act 1969 were received by the Workplace Relations Commission (hereinafter ‘WRC’) on 13^th February 2017 and referred to me for adjudication by the Director General. I proceeded to hearing on 14^th August 2017 and gave the Parties an opportunity to be heard and to present any relevant evidence. The Complainant represented himself whilst the Respondent was represented by Peninsula and a number of witnesses gave evidence on its behalf. As the Complainant was representing himself, I outlined the relevant legal provisions in lay terms.

All oral evidence, written submissions, supporting documentation and case law presented by both Parties have been taken into consideration when coming to this decision/recommendation/s. A number of related matters were resolved between the Parties as of 31^st August 2017 and were withdrawn, comprising of ADJ-00007180 - CA-00009665-004 and ADJ-00007335 - CA000010094-01.

Background:

The Complainant was employed by the Respondent Supermarket initially as a part-time Shop Assistant from February 2016 before he was promoted to a Supervisor in or around June 2016 until he was dismissed. It was agreed between the Parties that he earned an average of €325 gross per week. The Complainant is seeking compensation in respect of a claim of unfair dismissal under the Unfair Dismissals Act 1977 arising from his summary dismissal. In the event that he is found to have less than the requisite one year’s service, he seeks to have this dealt with as a dispute under Section 13 of the Industrial Relations Act 1969. He also seeks compensation in respect of the manner in which the Respondent handled his complaint of bullying and harassment, in the context of a dispute under Section 13 of the Industrial Relations Act 1969. Whilst there was no issue that these matters had been brought within the six month statutory period, the Respondent’s representative made a number of preliminary objections to my jurisdiction to hear these matters as addressed hereunder:

Preliminary Issue (1) – Whether Complainant has requisite one year’s continuous service for Complaint of Unfair Dismissal - CA-00009665-001

Firstly, the Respondent contended that the Complainant did not have the requisite one year’s continuous service to pursue a claim of unfair dismissal in accordance with Section 2(1)(a) of the Unfair Dismissals Act 1977 which provides: “Except in so far as any provision of this Act otherwise providesthis Act shall not apply in relation to any of the following persons: (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him.” It was contended that he commenced employment on 17^th February 2016, being the date that he was first rostered and worked for the Respondent and also underwent an induction to company procedures including cash handling and lock-up. Reliance in this respect was placed upon an undisputed Employee Information Form specifying ‘Start Date: 17/02/2016’ and roster confirming same as furnished.

The Respondent further contends that the Complainant’s employment ceased on 8^th February 2017 when he was dismissed although his P45 stated the date of cessation as being 9^th February 2017. This was said to be erroneous as was the start date of 2^nd March 2016 on his P60. Various arguments were made as to why one week’s statutory notice should not be included within the calculation of service. Reliance was placed on EAT decisions including one holding that the notice period was five working days inclusive of a weekend, and if followed, the date of cessation in this case would be 13^th February 2017. As the Complainant had been paid in lieu of his one week’s notice under Section 4 of the Minimum Notice and Terms of Employment Act 1973, an argument that Section 8 of that Act allowing for dismissal without notice for misconduct was not pursued.

The Complainant contended that his employment commenced on or about the week of 8^th February 2016 when he was verbally offered the job with the Respondent. There may have been some discussion about starting work that week but he agreed that ultimately, he was first rostered and worked for the Respondent on 17^th February 2016. He also contended that he was entitled to a week’s notice which commenced from the date of dismissal on 9^th February 2017 as stated in his P45, being 10^th February 2017, plus a week’s notice which would have given him a date of cessation of 16^th February 2017. Either calculation would bring him up to the requisite one year’s service.

Firstly, and dealing with the date of commencement, I note that the Complainant was not furnished with a contract for his initial period of employment until he was promoted to a Supervisor on 13^th June 2016. Amongst the other particulars of the terms of employment which an employer is obliged to provide to an employee in a written statement within two months of commencing employment, Section 3(1)(e) provides that the date of commencement of the employee's contract of employment should be specified. In the absence of a written contract for this period in the instant case, I therefore have to consider the other evidence adduced. Based upon the Employee Information Form specifying ‘Start Date: 17/02/2016’ as completed by the Parties and undisputed evidence that the contract of employment in question was first performed on 17^th February 2016, I am satisfied that both Parties intended the contract of employment to commence on 17^th February 2016.

Turning to the date of cessation, Section 1 of the Unfair Dismissals Act defines ‘date of dismissal’ as:

“(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates-

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,”

The definitions of the applicable notice/time periods are set out in the Minimum Notice and Terms of Employment Act 1973. Section 1 defines a ‘week’ as “any period of seven consecutive days” and a ‘year’ as “any period of fifty-two weeks”. Therefore, an employee’s working pattern and whether or not they worked weekends is irrelevant to the calculation of a week’s notice as a week comprises of seven consecutive days in all cases. Section 4 of the Act sets out the various periods of minimum statutory notice based upon length of service i.e. one week for more than 13 weeks and less than two years’ service and so on. Section 4(5) prohibits the Parties from agreeing to a lesser period and I note that a contractual term to this effect was quite sensibly not relied upon. There is no issue that the Complainant was given notice of termination when he was verbally informed of his immediate dismissal by the Operations Manager on 8^th February 2017 as confirmed in a letter handed to him. It is also well-established that the date on the P45 is not determinative of the date of dismissal as held by the Labour Court in National University of Ireland Maynooth -v- Ann Buckley FTD 1015.

Applying the definition in Section 1 of the Unfair Dismissals Act 1977, the date of dismissal is the date on which notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the earliest possible date it could have complied with the Minimum Notice and Terms of Employment Act 1973 in the absence of a longer contractual notice period. It is clear from the aforesaid definition that the requisite one week’s notice runs from the date such notice should have been given i.e. in the instant case, notice should have been given on the date of dismissal being 8^th February 2017 and hence the one week’s notice ran from 9^th February 2017 and expired on 15^th February 2017, leaving the Complainant one day short of the requisite one year’s service. For the sake of completeness, I have also considered whether this particular complaint could fall within any of the exceptions including where a dismissal arises from a disclosure within the meaning of the Protected Disclosures Act 2014, and have discounted same based upon the evidence set out hereunder. I therefore find that I have no jurisdiction to deal with the complaint of unfair dismissal under the Unfair Dismissals Act 1977, and will proceed to consider this matter as a dispute.

Preliminary Issue (2) – Whether late objection to an Adjudication Officer of the WRC hearing Trade Disputes divests WRC of jurisdiction to hear dispute

Secondly and at the hearing, the Respondent sought to object to an Adjudication Officer of the WRC investigating the two aforesaid trade disputes referred under Section 13 of the Industrial Relations Act 1969, having not previously indicated any objection. If the objection was validly made, this would have required the Complainant to apply directly to the Labour Court for a first instance hearing. Section 13(3)(b)(ii) of the Industrial Relations Act 1969 provides that an Adjudication Officer of the WRC shall not investigate a trade dispute if a party to that dispute notified the WRC in writing that it objects to the dispute being investigated by an Adjudication Officer. 36(1) of the Industrial Relations Act 1990 provides that an objection shall have no effect unless it is notified in writing within three weeks after notice of the reference of the dispute has been sent by post to that party. Applying these provisions, I ruled that as the Respondent had not lodged an objection within the requisite three week period after notice of these disputes, I retained jurisdiction to hear them.

As the facts pertaining to both disputes are interrelated and duplicated on the Complaint Form, I assigned CA-00009665-003 to the complaint in relation to the bullying and harassment procedures adopted, and CA-00009665-002 to the complaint of unfair dismissal. I also confirmed that my investigation of these disputes is properly confined to the procedures adopted as opposed to making findings on the merits of the Complainant’s complaints and his Store Manager’s counter-complaints.

Summary of Complainant’s Case – CA-00009665-002 & CA-00009665-003:

The Complainant gave evidence supplementing his detailed submissions and correspondence already submitted. He confirmed his position with the Respondent, initially as a Shop Assistant for three months until he was promoted as a Store Supervisor, earning an average of €325 per week in the latter position. He said that he had a Degree in Business, Economics and Accounting and after a career break, had left a well-paid corporate position to pursue work in the specialist line conducted by the Respondent. He rejected the Respondent’s contention that it was a small business as they operated a number of stores and had other business interests employing circa 30 staff.

On 21^st December 2016, he sent a written complaint to the Operations Manager detailing various grievances with his terms and conditions of employment including calculation of his annual leave; the Store Manager making changes to his roster and store that he was to work in at short notice; not being compensated for scheduled working hours cancelled at short notice and extra traveling time; and not being paid his statutory minimum rate of remuneration (arising from an inadvertent reference to an obsolete Payment Regulation Order in his contract). He had also contended that produce was being sold after its best. When some of these matters were brought to his Store Manager’s attention, they were belittled and his commitment had been questioned. Furthermore, he detailed incidents of bullying and harassment over the course of his employment by his Store Manager including humiliating and demeaning comments in public, intimidating and bullying behaviour and performance-related reprimands made outside of working hours in person and to his private phone number. He requested various minimum actions including compensation for the pay issues and communication of the Respondent’s Anti-bullying & Harassment Policy to all employees.

On 13^th January 2017, the Operations Manager conducted an interview with the Complainant at a local Pub outside of working hours in respect of this written complaint. He had declared that he had never received a complaint about the Store Manager throughout nearly a year of being in the position. This was contested by the Complainant who cited examples of difficulties encountered by other staff. He had asked if she or any other staff members had been trained in Anti-Bullying and Harassment, or had even been furnished with the Respondent’s Policies and the Operations Manager confirmed that they had not. He also said that he had encountered protracted resistance from the Store Manager to his requests for written terms of his employment and the Staff Handbook which he finally received by email on 7^th December 2016. The Operations Manager and Complainant had a follow-up meeting on 18^th January 2017 to clarify matters. When asked why he was only raising the issues at this stage, he said he had been concerned about his job whilst on probation, he had tried to resolve them directly with the Store Manager and had not been provided with grievance procedures until December 2016. He was also asked whether he wanted to move to another Store.

Thereafter, the Operations Manager sent an email to the Complainant notifying him of a meeting with the Store Manager the following day on 27^th January 2017 in the Store to “…give me the opportunity to relay the details and outcome of the investigation into the issue of Bullying and safety in the Workplace you raised recently.” As the Complainant had been working, he had not seen the email so had no prior notice or opportunity to prepare and was not afforded any representation. The meeting consisted of what he viewed as an aggressive interrogation in an effort to undermine his claims and intimidate him. The Store Manager sat beside him and made angry and aggressive interjections throughout, accusing him of lying, exaggerating and falsely accusing her. It was only when he said that he felt intimidated and did not want an acrimonious debate that the Operations Manager allowed him an opportunity to respond. Otherwise her behaviour was allowed to go unrestrained. The Operations Manager had suggested that her comments complained about had been “banter”, that any text messages she had sent were “all very pleasant” and he was being “overly sensitive”. His felt that his complaint was summarily dismissed without apology or acknowledgement for any of the reported incidents. It was also evident from the Store Manager’s numerous references to his emails (which he had made to the Operations Manager in confidence), had been made available to her, yet her counter-complaints had never been made available to him.

Following the meeting, in a detailed email sent to the Operations Manager on 1^st February 2017, the Complainant expressed his disappointment and upset with how the meeting had been conducted and the manner in which his complaint had been dealt with and summarily dismissed. He said that it had aggravated the situation and he was being victimised for raising issues regarding respect in the workplace and undignified working conditions. He outlined his position in relation to the complaints raised and indicated his intention to refer the matter to the WRC. He made various suggestions towards resolving the difficulties which included acknowledgement of the conduct complained about, that all employees receive training in respect of the Respondent’s Anti-bullying and Harassment Policy, an undertaking that the Respondent protect whistle-blowers and upholds lawful employee entitlements, and an undertaking from the Store Manager that she is open to reasonable questions regarding workplace conditions. When he returned to work thereafter, both the Operations Manager and Store Manager became terse, withdrawn and unamicable, taking a passive aggressive stance and a clear dislike of his decision to invoke his right of referral to the WRC.

On the evening of 7^th February 2017, the Operations Manager attended at the Store whilst the Complainant was working and handed him a letter, stating only that it enclosed details of "the next meeting". He was not given a chance to read the letter, enter into discussions or ask questions. The letter itself summonsed him to a disciplinary hearing the following day at 11am stating: “The purpose of the hearing is to discuss with you and to afford you the opportunity to provide an explanation for the following matter of concern: “Company disruption caused by failure to accept a fair review of your issues raised”. The letter further stated: “It is important that you attend this meeting but if you do not do so without good reason, I have to inform you that I will hold the disciplinary hearing and make a decision in your absence based on the evidence available to me which could lead to the termination of your employment. It is therefore very much in your own interests to attend.” It referred to the Respondent’s discretion to take into account his length of service and vary the procedures before further stating: “In addition, for the reasons outlined above, non-attendance on this occasion may in itself be treated as failing to obey a reasonable management instruction and that this failure itself may be added to the matters of concern already under consideration. I am also obliged to remind you that a failure to follow a reasonable management instruction may be deemed to be gross misconduct, the penalty for which could also lead to the summary termination of your employment.” He contended that the notice given was unreasonable as the meeting was scheduled for 11am the next morning, and he was not due to finish work until 8.15pm on the day he received notice. He confirmed that he had no time to contact anyone for advice, obtain the employee or trade union representation offered or prepare for the meeting.

The following day on Wednesday 8^th February 2017 at 11am, the Complainant felt that he had no choice but to attend at the disciplinary hearing conducted by the Operations Manager. During the meeting lasting just a few minutes, the Operations Manager had repeatedly demanded to know why he had raised issues of bullying again in his email of 1^st February 2017 following the meeting of 27^th January 2017, the implication being that he would not accept the outcomes of that meeting. The Complainant said that he could not understand how this could be used as a basis for disciplinary action. He assured the Operations Manager that there was no issue of company disruption and that he continued to carry out his duties in a professional manner and to take instructions from management. He had fully respected his investigation but was bound to give notice of his intention to refer the matter to the WRC and basis for same. He also indicated his willingness to put the matter behind him. The Operations Manager brought the meeting to an abrupt end without allowing him to respond to the allegations saying that he had to be somewhere else. Nor was he interested in hearing the Complainant’s expression of shock as to the manner in which the disciplinary meeting had been called or the threat of termination. He said he would get back to him.

The Complainant worked his shift as scheduled that day and at approximately 3.45pm, the Operations Manager called back to the Store and summonsed him to the office where he handed him a letter of termination telling him that it was “all in there” and that his time with the Respondent had come to an end. He declined to open the letter and said he could read it at home. The letter referred to the disciplinary hearing held on the same date stating: “At this meeting you were offered the opportunity of having a work colleague or trade union present as a witness, which you decided not to avail of. The matter of concern to me was: Company Disruption caused by failure to accept a fair review of your issues raised. At the hearing the reason you gave for your behaviour were: Your issues raised are still unresolved and continues still. How meetings have been conducted. Having listened to your explanations I considered them to be unsatisfactory because: Your issues raised have been fully investigated as per company policies and procedures. The main issue you raised was in relation to bullying, we did investigate but we could not substantiate your claims at all. Your unsubstantiated claims have caused grievances amongst other staff members. The working environment has subsequently suffered. As per the company’s disciplinary rules and procedures we retain the discretion to take into account your length of service with the company and to vary the procedures accordingly, in respect of formal warnings up to and including termination. This was re-confirmed to you in your disciplinary invitation letter. As a consequence therefore, and taking into account your length of service I have decided that your employment should be terminated.” Although the Operations Manager had advised him of his entitlement to appeal, the Complainant contended this had not been respected as his employment was terminated with immediate effect. He also confirmed that he had not been made aware of emailed complaints about him from the Store Manager to the Operations Manager dated 2^nd and 7^th February 2017 until after his dismissal.

The Complainant subsequently received a P45 by email citing his date of cessation as 9^th February 2017 along with a week’s pay in lieu of notice. He submits that his previous exemplary record had not been taken into account in contravention of the Respondent’s Disciplinary Procedures, as he had not been subject to any warnings, etc. before the sanction of dismissal was imposed. Furthermore, the conduct complained of cannot amount to gross misconduct and/or was not provided for in the Respondent’s Disciplinary Procedures, amounting to a false charge of gross misconduct. Neither was discretion to vary the procedures provided for in his Contract or the Staff Handbook. He felt victimised for indicating that he was going to exercise his rights of referral to the WRC. He sent a letter of appeal to the Managing Director on Thursday 9^th February 2017 in accordance with the termination letter, also indicating his intention to refer the matter to the WRC. He referred this matter to the WRC on Monday 13^th February 2017. The Complainant seeks compensation both in relation to the manner in which his complaint of bullying and harassment was handled and the unfair manner in which his employment was terminated. He also contended that the Respondent had failed to abide by its staged disciplinary procedures allowing for lesser sanctions and that dismissal for gross misconduct was not justified in the circumstances. After his dismissal, he was upset and stressed and remained at home for a number of weeks before undertaking a course to obtain a qualification in ‘Teaching English as a Foreign Language’ (TEFL). He then moved to Brazil where he has been seeking work in that field as vouched but to date had been unsuccessful. He had spent a considerable sum on retraining (which he sought to be compensated for) and €1000 in travel costs returning for the hearing. He said that he would not be able to secure employment in the Respondent’s line of business arising from the manner in which his employment had been terminated, and he had been out of the corporate world too long to pursue employment in this field.

Under questioning, the Complainant accepted that many of the issues about his pay and working conditions raised with the Respondent had been resolved. It was put to him that the meetings were organised by the Operations Manager in an effort to resolve matters informally, and also in an effort to bring him and the Store Manager together with a view to moving forward. The Complainant denied that there was any substance to the counter-complaints raised by the Store Manager and said that he should have been afforded an opportunity to see these complaints and address them before the disciplinary hearing proceeded. It was put to him that his text message exchanges with the Store Manager as produced at the hearing could not reasonably be construed as intimidating. The Complainant was unable to identify any statutory breaches in relation to the produce which he contended was being sold after its best. In response to a contention that he had not exercised his entitlement to appeal, the Complainant produced a copy of the appeal sent to the Managing Director on 9^th February 2017 along with proof of postage. It was further put to him that he had not waited very long before submitting this Claim Form on 13^th February 2017 which included a weekend. He said that when he heard nothing from the Respondent, he wanted to get it in quickly.

Summary of Respondent’s Case - CA-00009665-002 & CA-00009665-003:

Whilst the Respondent refuted the Complainant’s complaints that it had not addressed his grievances properly and had unfairly terminated his employment, little issue was taken with the sequence of events as outlined above. With reference to the one year’s continuous service required to bring a claim of unfair dismissal, it was conceded that the Respondent had been under “time pressure” in relation to the disciplinary process adopted. I do not propose repeating the background other than outlining any departing/rebutting evidence proffered on behalf of the Respondent.

The Managing Director confirmed that the Respondent had recently passed a WRC inspection (possibly arising from this claim) “with flying colours”. He also said that Management’s main focus had been on keeping the business going and retaining jobs at a time of considerable stress and financial difficulty. The Complainant’s conduct had been very disruptive to the business and the Operations Manager’s time had become consumed with dealing with his grievances. The Respondent had no alternative but to invoke a disciplinary process for gross misconduct. He also denied that he had received the letter of appeal from the Complainant dated 9^th February 2017.

Although I did not need to hear from the Store Manager, she wanted to confirm her denial of the Complainant’s allegations and specifically the language allegedly used in relation to his complaints.

The Operations Manager gave evidence confirming his role in relation to the grievance and disciplinary processes adopted. Following the busy Christmas period, on 13^th January 2017, he met with the Complainant in a local pub to go through the grievances outlined in his email of 21^st December 2016. He had also raised a number of other grievances at this meeting. He met with the Complainant again on 18^th January 2017 to update. He had resolved most of his pay issues and answered his other grievances as per minutes provided. He had confirmed that due to the severity of the claim of bullying and harassment made against the Store Manager, he would have to give fair time and notice for her to respond to these allegations. Further to interviewing both employees individually, he arranged a further meeting with them on 25^th January 2017 and at the Complainant’s request, postponed it until 27^th January 2017. Although the Complainant had feigned surprise when he arrived at the Store and denied receipt of his email notifying him of the meeting, he raised no objections to proceeding with the meeting at the time. The Complainant’s allegations of bullying and harassment were thoroughly aired. He felt that the Complainant was being evasive when the Store Manager asked him how her behaviour was considered intimidating or bullying and kept referring to his emails. He stated that he had not found any evidence that her behaviour coincided with what was being alleged, and there were no grounds to consider bullying or safety as being an issue from his investigation. After the meeting, the next step was to meet with the employees individually before meeting together again with a view to resolving their working relationship.

On 1^st February 2017, he received the email from the Complainant expressing his dissatisfaction with the meeting and stating his intention to refer the matter to the WRC. On 2^nd and 7^th February 2017, he received emails from the Store Manager raising serious issues around the Complainant’s conduct, the first stating that she felt that his complaints of bullying and harassment against her were malicious and unfounded and she felt uncomfortable working round him and upon contacting the WRC, it was suggested that she follow the grievance process. In the second follow-up email she asked for the matter to be investigated stating: “I feel under a lot of pressure and stress and I don’t know how long I could keep working in this environment. I had a mild panic attack yesterday and even though it wasn’t anything major I feel that my health has been jeopardized… I don’t know whether I can keep working with someone who has deliberately falsely accused me of bullying….” By letter dated 7^th February 2017, he invited the Complainant to a disciplinary hearing to be held the following day as outlined above. Following the disciplinary hearing, the Complainant was advised that his employment was terminated and he was offered a right of appeal which he failed to invoke, instead referring the matter to the WRC on 13^th February 2017. He referred to “going through the motions” in relation to the dismissal procedures adopted. However, he felt that it was reasonable to terminate the Complainant’s employment in circumstances where he would not accept his extensive efforts to deal with his grievances which had usurped his time during a busy period, and also given the disruption caused by the escalating situation and risk of losing their valued Store Manager.

When questioned by the Complainant regarding the fairness of the process adopted and why the Store Manager had been allowed to see his complaints whilst he had never been shown her counter- complaints, he denied sending on his emails to her and said that he had told her about some of the contents. He also accepted that the Complainant had not seen any minutes from the various meetings until this hearing. No minutes were produced in relation to the disciplinary hearing but he accepted that he had been abrupt with the Complainant. He thought he had afforded him the opportunity to respond to the allegations but had to be somewhere else. He had not availed of expert HR advice and had based the procedures adopted on his own experience and training. He felt that the decision to dismiss the Complainant was the only reasonable way to deal with the difficult workplace situation that had arisen from his grievances and refusal to accept the outcome of same.

CA-00009665-002 & CA-00009665-003 – Findings and Conclusions:

Whilst I am not making any findings of fact in relation to the rights and wrongs of the respective complaints of the Complainant and the counter-complaints from his Store Manager, during a lengthy WRC hearing, I observed a total disconnect and misfit between the Parties. It was clear from the Complainant’s detailed claim, emails, correspondence and evidence proffered that he expected the Respondent to conduct its business and handle his various grievances at a level that would reasonably expected from a large corporate organisation and to which he was accustomed. The Respondent is a relatively small labour intensive business without a separate HR Department and was not equipped to meet his expectations ultimately leading to these complaint/disputes. Regardless of size however, the Respondent is still obliged to act in a reasonable and lawful manner.

As already stated and as per the Labour Court’s position confirmed in Bord Gais Eireann -v- A Worker AD1377, my role in the context of a dispute relating to disciplinary action is confined to considering the reasonableness of procedures adopted in the particular circumstances, as opposed to placing myself in the role of the employer and making findings of fact in relation to the matters alleged. In this respect, I am guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures. I also note the distinction between a WRC adjudication and workplace inspection, the latter being more concerned with ensuring statutory compliance. It does not automatically follow that an employer who passes an inspection as in the instant case cannot fall short in respect of a specific complaint or dispute.

Dealing firstly with the manner in which the Complainant’s grievances were handled, I am satisfied that although the Respondent resolved his pay issues (some of which were justified) and clarified other issues, his complaints of bullying and harassment against the Complainant’s Store Manger and her counter-complaints were not appropriately handled. Once it was felt that the informal process adopted by the Operations Manager failed, a formal process should have been invoked in relation to both sets of grievances entailing both parties to know the complaints made against each other and the opportunity to respond. Appropriate HR advice and assistance should have been obtained if this was beyond the Respondent’s capacity and the Operations Manager’s expertise. Failing that, the Complainant should have been afforded his entitlement to refer the matter to the WRC as provided for in the Respondent’s Grievance Procedures. If was felt that the Complainant’s grievances had reached a level that was vexatious and disruptive to business, then a stepped approach under the disciplinary procedures would have been appropriate, particularly where there was no provision in the Respondent’s Disciplinary Procedures for ‘Company Disruption caused by failure to accept a fair review of your issues raised.’ to constitute gross misconduct justifying summary dismissal.

Secondly, I am satisfied that the Complainant’s dismissal was not in accordance with the general principles of natural justice and fair procedures, where it is evident from the dismissal letter that he was dismissed for not accepting the outcome of the Operations Manager’s investigation of his grievances. This was in direct contravention of his contractual entitlement to refer the matter to the WRC. Unfortunately, there remains a common misconception amongst a limited number of employers that fair procedures are not required where an employee has less than one year’s service. This appears to arise from the fact that an employee cannot bring a complaint of unfair dismissal under the Unfair Dismissals Act 1977 save for the exceptions provided thereunder with less than one year’s continuous service. Such a misconception was evidenced in the instant case by the references to “time pressure” and “going through the motions” in relation to the disciplinary process adopted.

Having assessed the disciplinary process adopted in terms of what would have been reasonable for an employer in the Respondent’s circumstances, I am satisfied on its own evidence that in a bid to beat the one year’s service time limit, it was devoid of any fair procedures and the outcome was a fait accompli. In particular, the grievance procedures should have been exhausted as set out above before the disciplinary process was invoked and the staged approach provided for should have been adopted in relation to the sanctions imposed. Fair procedures also dictate that the Complainant should have been afforded sufficient notice to prepare for the disciplinary hearing and to obtain representation. He was also entitled to be furnished with all relevant documentation including the countercomplaints from the Store Manager and meeting minutes. The language used in the notification letter and elevation of “Company disruption caused by failure to accept a fair review of your issues raised” to gross misconduct was particularly misguided. Given the absence of due process, I consider the issue of whether the Complainant appealed and/or whether it was received irrelevant given that he could not reasonably be expected to have any confidence in the process.

Decision and Recommendations:

Section 8 of the Unfair Dismissals Act 1977 requires that I make a decision in relation to the complaint of unfair dismissal accordance with relevant provisions under that Act. As I have found that the Complainant does not have the requisite one year’s continuous service to bring this complaint as set out aforesaid and I therefore do not have jurisdiction to hear it, I dismiss that complaint - CA-00009665-001. Section 13 of the Industrial Relations Acts 1969 requires that I make recommendation/s in relation to the two disputes. Based upon the aforesaid reasoning, I recommend that the Respondent makes a once-off ex gratia payment to the Complainant in compensation for the manner in which his complaint of bullying and harassment was handled (CA-00009665-002) of €500, and in respect of the termination of his employment (CA-00009665-003) of €1000, totalling €1500. Notwithstanding the Respondent’s shortcomings, I am also mindful that the Respondent engaged fully and resolved some of the other complaints and have measured compensation accordingly. For the sake of clarity, had this been a finding under the Unfair Dismissals Act 1977, compensation above four weeks’ remuneration may only be awarded in respect of actual and future loss of earnings. Whilst I fully accept the Complainant’s bone fide efforts as vouched to secure employment as a TEFL teacher in Brazil, I would not have been able to award more than the instant sum in circumstances where this was highly speculative, as borne out by the fact that he had been unable to secure such employment as at the date of the hearing.

Dated:   07/12/17

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: 36(1) of the Industrial Relations Act 1990 – time limit for objection to an Adjudication Officer of the WRC hearing a trade dispute – Section 13 of the Industrial Relations Acts 1969 – fair procedures in relation to termination of employment with less than one year’s continuous service