ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001541

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00002067-001	21/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00002067-002	21/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00002067-003	21/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004	CA-00002067-004	21/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946	CA-00002067-005	21/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00002067-006	21/01/2016

Date of Adjudication Hearing: 27/04/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 , Section 8(1B) of the Unfair Dismissals Act, 1977, section 77 of the Employment Equality Act, 1998 , section 7 of the Terms of Employment (Information)Act, 1994 , Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004, Section 13 of the Industrial Relations Act, 1969 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 , 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:

( CA- 00002067 - 001) I wish to lodge a complaint before the Labour Relations Commission under the Unfair Dismissal Acts 1977 to 2007 against my employer, Respondent Ireland Limited and Respondent Ireland, and in doing so I call upon a Rights Commissioner to investigate the substantive issues involved and to assist in bringing resolution to the matter in the interest of all parties. The reasons given by Respondent Ireland in particular by Store Manager J M AND PM xx were: - unsatisfactory conduct and performance related to my level of absence and refusal to obey a legitimate instruction by line manager. This information was sent over to my and received only on 23rd of July 2015. I cannot accept it as all above are way from the truth. The fact is that since March 2015 I was in dispute by utilising reverence procedures with the local management ( JM and PMXX) and eventually with the Head Office Respondent Ireland Limited (LK - Employees Relations Manager) - on number of grounds where the most important ones were : - lack of duty of care towards employees and ignorance of Health and Safety issues in our workplace - breach of Privacy Policy, and falsification of my signature in my personal files on number of occasions that I treat as criminal offence as it is stolen identity (in Respondent Staff Handbook it is called "Serious Misconduct") - workers union activity (Independent Workers Union) in our workplace to support my colleagues in various matters starting with Health and Safety The fact that I dared to speak up about important matters in our workplace in particular Health and Safety i.e. participation in risk assessments, a right to confidentiality and privacy of my personal files, the right to be treated like others (not penalised, isolated, discriminated and harass because of my i.e. temporary disability, actions taken on Health and Safety grounds, union activity, temporary disability that was caused by lack of duty of care from the management), the fact that I asked for properly done trainings - dedicated ones in training room with possibility to receive answers to given questions....not in the middle of serving the customers or somewhere in the corner with pile of papers to fill up on the shop floor....just to have it done and sign under so everything looks fine in papers when auditors come. All these issues I addressed to the management utilising Respondent's internal procedures. I made two appeals that were sent to Head Office Respondent Ireland - Employees Relations Department. Both were heard but never received the copies from the hearings, the more never received the answers and findings from these investigations. The fact is that people who were taken under these investigations fired me - no "trouble maker employee"...so cases closed. I just followed my contract agreement that states that I have a duty of care towards my colleagues and should address all issues related to my workplace. I have done it in most polite way spending hours on meetings with the management trying to have a constructive, logical dialog - for all of this I got eventually fired in the most ridiculous way - called to the meeting room on 21/07/2015 where suppose to have a meeting regarding my grievance - it appeared it was not. Mr JM was waiting with PM XX and ready made statement that he started to read. I got the idea what is about. I told them they are in breach of all disciplinary procedures (they even haven't informed Mandate Union official about that) and I do not accept it. I wanted to leave but they didn't care and didn't allow me to leave the room. I've seen huge satisfaction on their faces but I am the one fired for inappropriate conduct that cannot be tolerated. What comes to my absence - never heard from anyone that my absence is in question - I never had any meeting, warning or chat with this regards. I never had any disciplinary meeting in any matter but a lot of good comments on my performance and great customer service. All findings from the dismissal letter were appealed on the 10th of August 2015. Note Taker was JT also taken under investigation with regards signature issue. Mr WH (Mandate Union Representative) was representing my appeal. Only on 2nd of September 2015 I've received a decision that dismissal is upheld. It is my belief that Respondent Ireland was in breach of a number of provisions as set out under Irish Employment Law including the Safety, Health and Welfare at Work Act, 2005 when firing me. When doing so the company showed not only complete ignorance towards their own internal rules and procedures but most important was in breach with Irish law. If agreeable with the Workplace Relation Commission, I will outline the substantive issues involved further and in greater detail at my hearing once a date has been set.

( CA- 00002067 – 002) When asked for assistance in relation to my disability - the time given was without consultation with the company doctors and way shorter than other employees were getting. Straight away the management tried to receive from me the statement that I refuse to continue my duties in my workplace. I am aware that there were at least 2 women who were accommodated due to their disability - even permanent one. I requested to be accommodated due to temporary problems with my leg - this wasn't given to me and I was forced to continue duties despite medical opinion that I suppose to receive help till my leg will get better. I collapsed at my workplace and was unable to work due to developed lower back problem - ambulance was called at that evening. When I wanted to get back to work - the company didn't allow me to do saying that I am unfit to work. These are just some of examples. If agreeable with the Workplace Relation Commission, I will outline the substantive issues involved further and in greater detail at my hearing once a date has been set.

CA- 00002067 – 003 I have received my contract of employment; I haven't received the Staff Handbook where the most of the contract conditions are set. On the 10th of April 2015 during a welfare meeting with PM XX I asked for my staff handbook as till that time since commencement of work I have NOT received one. PMXX brought me a document which purported to have my signature on it. When I examined the document I have discovered that my signature was forged. I informed shop steward and PMXX about it and requested investigation in that matter. What more when was getting fired the employer was in breach of internal disciplinary procedures that are set in Terms and Conditions of Employment.

CA- 00002067 – 004 I believe that a part of my dismissal was the fact that I was an activist with Independent Workers Union. One only of examples but very important one: when on sick leave I haven't received payment - was trying to get know why - got the answer after long hours of calling to the local office of Respondent: I was told that I haven't received my payment as I belong to different union now and sick payment scheme is regulated by Mandate not other union only. I was penalised because I exercised my right to complain about Health and Safety issued that affected me and my colleagues. If agreeable with the Workplace Relation Commission, I will outline the substantive issues involved further and in greater detail at my hearing once a date has been set.

CA- 00002067 – 005 I believe that I become a victim of bullying and harassment when started act on my and my colleagues behalf on Health and Safety grounds and when my health problems started. I had a feeling that the company is trying to get rid off by all means: suspension without pay didn't work out and the company had to accommodate me as agreed with Mandate Union representative WH so they figure out other ways: - in purpose forgetting to relief me on my work place to allow me rest and avoid terrible pain in my back - being very rude to me and speak in unacceptable way like KX who was sent to me to scare me off in my opinion. On approaching me in aggressive way: BX - You took the chair to sit down so now you will not be given chance to rest during work on tills!! He was always sent by senior management i.e. Line Manager, Duty Manager etc. - other situation - Compliance Manager came over to me and took the chair away from me saying that I cannot sit even I am in pain. There are other examples that if agreeable with the Workplace Relation Commission, I will outline the substantive issues involved further and in greater detail at my hearing once a date has been set.

CA- 00002067 – 006 During the meeting on 21st of July 2015 I was informed that my employment will be terminated. On the P 45 the termination date is 24th of July 2015. As I am aware I should be in right to receive 7 days notice which is confirmed by the company notice letter which states that termination date is 28th July 2015. If agreeable with the Workplace Relation Commission, I will outline the substantive issues involved further and in greater detail at my hearing once a date has been set.

Respondent’s Submission and Presentation:

A detailed submission was received on the day of the Hearing from the Respondent and was supported by oral testimony from 6 witnesses.

Summary of Written Submission

The case concerns a series of complaints made by a former employee of the Respondent – the Complainant.

The Complainant began employment with Respondent on 29 July 2014 as set out in her contract of employment.

She was dismissed from the company on the grounds of ‘Unsatisfactory Conduct and Performance’ on 21^st July 2015, and given one week’s pay in lieu of notice

Complainant chose to appeal this termination and an appeal hearing was held with Mr R on 10^th August 2015 with

Mr WH of MANDATE present. Mr R determined that the dismissal was fair and the dismissal was upheld.

The Complainant had less than one year’s service at the time of her dismissal.

Response to THE COMPLAINANT’S Claims

Complaint number 00002067-001 - Unfair dismissal

Reasons for dismissal

Notwithstanding the argument that the claim of unfair dismissal has no standing due to the claimant not having the required service in the employment of Respondent to bring such a claim, the respondent nevertheless will outline the reasons for the dismissal under two categories:

Level of absence

The Complainant’s Absence level was 21.74% from 09/03/15 - 21/07/15.

There was an occasion on 04/04/15 whereby she returned to work with a cert stating she was fit to return to work, however the Complainant declared herself unable to stand for long periods therefore she was deemed unfit for work and sent home. Not including this period of time her absence was 15.57%.

During the Complainant’s absence she received welfare assistance on 10/04/2015, 18/05/2015, 18/06/2015 and the 09/07/2015. Welfare meetings are a means to access a colleague’s illness, improvements happening and the support needed to aid their return to work and on two occasions the Complainant was referred to the company doctor as a means of support for her.

Company Doctor Appointments look place on 06/05/2015 and 22/06/2015.

Unsatisfactory conduct and refusal to obey a legitimate instruction by a line manager.

On the 18/07/15 the company compliance manager requested that The Complainant attend a manual handling training session with her in the training room, however the Complainant then requested to see the compliance manager’s training records to see whether she was fit to carry out the training. The person under scrutiny was the compliance manager for the store at the time and therefore was the assigned person to ensure all training was carried out.

The Complainant did not agree to attend the training (which she had herself requested) and therefore the training was not completed.

The Complainant also raised through a grievance following her dismissal "The fact that I declared to speak up about important matters in our workplace and in particular health & safety" suggesting that that was an influencing factor as to why she was dismissed. This is certainly not the case and Respondent takes very seriously the duty of care they have for their colleagues in their store.

Respondent has a health & safety board in store displaying all relevant information that colleagues require to see how they are keeping the workplace safe.

On this board the company display the details of their health & safety committee, their next steps from their quarterly meetings and the plans in place to rectify any concerns which colleagues have. The company also has signage across the shop floor and warehouse to reiterate the health & safety message across the shop.

The store has had a risk assessment carried out on it to ensure they are providing a safe work place and has internal and external auditors who carry out independent health & safety audits in store.

The store has a duty manager log book which shows that 3 times in every 24 hours the store is reviewed, accessed and signed off as a safe place to work. There are up to date lists of fire wardens and first aiders on display in the store.

Complaint number 00002067-002 - No support for my disability

The Complainant states that when she asked for assistance in relation to her disability, “the time given was without consultation with the company doctors and way shorter than other employees were getting" and that "I am aware that there were at least 2 women who were accommodated due to their disability"

It should be noted that all colleagues in the store are treated on an individual basis and the company would never compare one colleague’s personal situation to another.

In relation to "without consultation" during her period of illness, the Complainant had been referred to the company doctor on two occasions (06/05/15 and 22/06/15) and in both cases the doctor created medical reports. The recommendations in the reports were carried out in store and it was not until the medical assessments were that she was fit to resume normal duties that The Complainant was expected to carry out her normal duties.

Within the doctors report from 06/05/2015 the doctor states she could not identify any physical condition needing treatment, and she carried on to report "I cannot find any evidence of work related illness or injury, I find Barbara in excellent health today and cannot find any evidence of acute or underlying mental or physical health problem".

Complaint number 00002067-003 - not receiving the staff handbook.

The Complainant has highlighted that she did not receive a staff handbook. The company has investigated this claim and the training record document recording her having been issued with the handbook was signed. The Complainant claims this is not her signature.

The company has carried out internal investigations with the company trainer and the other colleagues that have access to the personal files however all denied any knowledge of any discrepancy regarding the signed document from the training session.

The company also carried out a review of all other colleagues that received their induction training on the day in question, and our findings are that they all received the handbook and that they are confident that all signatures are their own.

Complaint number 00002067-004- Penalisation

The reason the Complainant wasn’t paid while out sick was that she didn’t follow company policy regarding sickness absences. When The Complainant returned to work, her sick pay was paid to her.

Complaint number 00002067-005- Bullying & Harassment

No bullying or harassment claim was ever raised by the Complainant. Had such a claim been raised, the company would have been obliged to investigate it under the company policy handbook

Complaint number 00002067 -006 - Minimum Notice

The Complainant attended a meeting with the store manager on 21/07/15 and was verbally given seven days notice, but was fully paid in lieu of that notice.

The Complainant was issued with a letter stating the same on the 22/07/15 and was terminated on the Time and Attendance system on 24/07/15.

Conclusion

Adjudicators, the claims as set out in the Complainant’s complaint form have no basis in fact and are frivolous and vexatious.

The unfair dismissals claim alone must fall as it is statute barred as a result of the claimant not having the required service in the employment of the company.

All the other associated complaints are without foundation.

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 and the relevant Sections of the Acts listed above in the Complaint referral numbers

CA-00002067-001 to CA-00002067-006

Issues for Decision:

Act	Complaint/Dispute Reference No.	Issue
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00002067-001	Was there an Unfair Dismissal?
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00002067-002	Was there Discrimination and or Victimisation?
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00002067-003	Did a breach of the Act take place?
Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004	CA-00002067-004	Did a breach of the Act take place?
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946	CA-00002067-005	Did Bullying and Harassment take place as alleged?
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00002067-006	Was appropriate notice paid?

Legislation involved and requirements of legislation:

The relevant Sections of the Acts listed above – the primary need being initially to demonstrate that all claims meet the notice /time limits etc. requirements of the Acts and secondly for Prima Facie evidence to be produced to substantiate whether or not the claim are well founded and /or a sustainable defence can be presented by the Respondent.

I carefully studied the large amount of written evidence presented by both parties and the oral evidence given by a substantial number of witnesses on the day of the hearing.

Decision:

I will use the Complaints listing used above.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00002067-001

The Complainant began employment on the 29^th July 2014 and the employment ended on the 21^st July 2015.

The Complainant fails to meet the 12 months Service requirements of the UD Act, 1977 (Section 2) and accordingly the Claim cannot be proceeded with.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00002067-002

The Employment Equality Acts require that a Disability be life changing and or of a reasonably long duration. A short term condition is not a Disability. I reviewed the evidence and in particular the Medical Reports submitted.

In this case the Complainant alleged that she had a back/leg condition that precluded her from long periods of standing. The Respondent allowed the complainant a local facility to rotate away from the standing duty position while she maintained she had a leg complaint. A meeting took place with the Mandate Official on the 18^th May 2015 where this temporary accommodation was agreed.

She was examined on two occasions by the Occupational Health Physicians of the Respondent. The Physicians are well known Occupational Health practitioners - MedWise. Both Reports from MedWise could not find any evidence of a disability and the final one on the 25/06/2015 stated that

“In my opinion X (the Complainant) is fit for full normal duties without restriction. She does not require any special adaption or accommodation to her work duties”.

Accordingly I could not find evidence from either Report of a Disability.

The Claim is not well founded as there is no Prima Facie evidence of Discrimination on the grounds of a Disability.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00002067-003

The key issue here was whether or not the complainant had received a copy of the Staff handbook following the initial Induction /Training session.

The Complainant in addition maintains that her signature on a record sheet from that session is effectively “Forged”

The Respondent carried out a full investigation.

Evidence was given of investigations with colleagues present on the same day/training course and all confirmed receipt of the Handbook. The respondent is a large organisation and evidence was given of the priority placed on Staff induction raining.

On the balance of probabilities, having reviewed the evidence, I have to accept their version of events.

Accordingly the claim is under the Terms of Employment (Information) Act, 1994 is not well founded and is dismissed.

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004

CA-00002067-004

The Complainant was an active member of the MANDATE Trade union and latterly an associate of the Independent Workers Union. Almost all of her activities were carried out under the MANDATE banner. She was actively represented by a MANDTAE Official up to and including her final appeal against her dismissal. It was stated in evidence from the Respondent that the staff of the Respondent Organisation have a Collective Agreement with Mandate. The Respondent openly engaged in correspondence with the IWU and pointed out to them that the Respondent had a Collective Agreement with MANDATE. The Respondent pointed to their long history of good relationships with Unions generally.

In this context and having reviewed all the evidence and especially the credible oral evidence from her Managers her allegations of Victimisation on Trade Union grounds because of her association with the Independent Workers Union, in addition to Mandate, lack a Prima Facie evidential basis.

The claim is not well founded and is dismissed.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946

CA-00002067-005

The Complainant alleged that she had been a victim of bullying and harassment as a result of her raising issues in relation to health and Safety and in particular her request for a chair to sit on while engaged in the “Self Scanning” area of the Respondent Store. A meeting had taken place on the 18^th May 2015 attended by Mr WH of mandate – A local arrangement was put in place in relation to allowing the Complainant rest breaks from the standing duties. It was accepted by the Respondent that this agreement may not have been initially fully communicate to all her colleagues. This did lead to some tensions with other staff in relation to her taking “rest” breaks but was effectively corrected by the local Manager once he became aware of it.

The Respondent has well defined and publicised Policies (Bullying and Harassment) in this area. The Complainant never lodged a formal claim.

However on balance and having reviewed all the evidence I could not find any Prima Facie evidence to support the allegations of Bullying and Harassment as claimed.

The Claim is not well founded and is dismissed.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00002067-006

The evidence presented by the Respondent indicated that full notice had been paid to the Complainant.

On the balance of probability I accepted this version of events.

Accordingly the claim is not well founded and is dismissed.

Dated: 7^th July 2016