FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : THERAPIE CLINIC (REPRESENTED BY ADARE HUMAN RESOURCE MANAGEMENT - AND - A WORKER (REPRESENTED BY MAURICE FINES) DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. An appeal of an Adjudication Officer's Decision No ADJ-00001434.
BACKGROUND:
2. This case concerns the termination of the Claimant’s employment.
- The Employer said the Claimant’s employment was terminated following complaints from three clients and an investigation that followed.
- The Claimant said she was called to a meeting on the 28th October 2015, was not informed she could be accompanied by a colleague and was dismissed with immediate effect.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 24th November 2016 the Adjudication Officer issued the following Recommendation:-
- I have considered the submissions of both parties. The Claimant argued that details of lack of fair procedures, particularly in regard to representation and minutes of meetings. The Respondent decided that no formal sanctions would apply during the review/investigation. However, the facts of the case in regard to the three clients are not in dispute. This resulted in legal and financial consequences for the Respondent as a result of the Claimant’s failure to use proper protocols in each of the cases.
I find that the termination of her employment was and reasonable in this case. I do not find the claim well founded and it fails.
- I have considered the submissions of both parties. The Claimant argued that details of lack of fair procedures, particularly in regard to representation and minutes of meetings. The Respondent decided that no formal sanctions would apply during the review/investigation. However, the facts of the case in regard to the three clients are not in dispute. This resulted in legal and financial consequences for the Respondent as a result of the Claimant’s failure to use proper protocols in each of the cases.
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 15th November 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 26th January 2017.
WORKERS’S ARGUMENTS:
3. 1. She was called to a meeting on the 28th October 2015 and was not informed that she could be accompanied by a colleague.
2. She was not informed in advance as to the nature of the meeting or to the potential serious outcome it could have for her.
3. This is a breach of the Company’s own disciplinary procedures.
EMPLOYER’S ARGUMENTS:
4. 1. The Claimant was offered the opportunity to be accompanied to the meeting on 28th October 2015.
2. She was provided with an opportunity to fully respond to each complaint on each occasion and at the meeting on the 28th October.
3. The Company’s actions were fair and reasonable at all times and it made every effort to support the Claimant.
DECISION:
The Court has considered in detail the written and oral submissions of the parties.
It is clear that events occurred on 25thSeptember 2015, 21stOctober 2015 and 23rdOctober 2015 which involved treatments administered to clients of the Respondent and which gave rise to engagements between the Appellant and the Respondent. The Appellant was dismissed on 28thOctober 2015 at a meeting attended by her, the Clinic Manager and a person described to the Court as ‘Front of House on the Management team’.
The Court notes the assertion of the Respondent that its actions, including the meeting of 28thOctober, were undertaken in the context of support for the Appellant to address ‘shortcomings’ in her performance.
The Court was provided with a document which is acknowledged by the Respondent to be the disciplinary procedure of the Respondent. That procedure incorporates a staged process of discipline which can result in dismissal. In addition the procedure allows for summary dismissal for gross misconduct. The Respondent acknowledged at the hearing that the steps taken by the Respondent following each of the incidents referred to above were not in accord with the disciplinary procedure of the Respondent as set out in the document submitted to the Court.
It is an essential feature of a fair disciplinary procedure that an employer follows the procedure set down and understood in the employment when dealing with disciplinary matters. The Court finds that the Respondent did not follow its own procedure in this case. The Court also finds that a process which results in dismissal cannot properly be characterised as a process of support for good performance.
The Court accepts that the client related events of September and October 2015 carried potentially serious implications for the Respondent’s business. Nevertheless the Court must find that the Respondent was responsible for the conduct of what was essentially a disciplinary procedure in a manner which was not fair having regard to the fact that it was at variance with the Respondent’s own disciplinary procedure. Indeed the fact that the Appellant was on leave and not consulted during the Respondent’s investigation of the matter immediately prior to her summary dismissal was a serious shortcoming.
In all of the circumstances the Court finds that the Appellant was unfairly dismissed and recommends that the Respondent should pay to her the sum of €3,500 in compensation.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
9th February, 2017Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.