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-00005522-001

27/06/2016

The Complainant was employed as a Cleaner from 22^nd   February 2008 until his employment was terminated, without notice, on 22^nd   April 2016. He was paid €9.75 an hour and he worked 40 hours a week. The   Complainant was provided with a written statement of his terms and conditions   of employment including the Grievance and Disciplinary Procedures of the   Company. The Complainant lodged a complaint with the Workplace Relations   Commission on 27^th June 2016 alleging he had been unfairly   dismissed by the Respondent.

The Complainant was employed as a Contract Cleaner and   following a transfer of undertaking he transferred to the Respondent Company.   He was assigned to work in a (named) site. The Complainant wrote to   Management on 14^th January 2016 stating he was being harassed by   his Supervisor and the Supervisor made a number of complaints against the   Complainant and received by the Respondent on 19^th January 2016.   The Complainant left his employment during the course of the working day on   19^th January 2016, this leave was not authorised by the   Respondent. The Respondent wrote to the Complainant on 26^th   January 2016 stating he had remained absent from work since 19^th   January 2016 with no medical certificate submitted. The Complainant responded   on 27^th January 2016 and he was invited to attend an investigation   meeting on 5^th February 2016, by letter dated 3^rd   February 2016. The meeting was rescheduled to 8^th February 2016   and the Complainant was informed there were a number of issues to be   discussed including that the Complainant wrote directly to the Respondent’s   client on site on 8^th February 2016 raising certain grievances   which should have been addressed to the Respondent.

A Disciplinary Hearing was scheduled for 24^th   February 2016 with a named Operations Manager and the Complainant was placed   on paid suspension. The outcome was communicated to the Complainant on 11^th   March 2016. He was informed that the subject matter of the Disciplinary   Process constituted gross misconduct and that he was to be transferred to   another site nearby. He was informed of his right of appeal. The Complainant   responded on 16^th March 2016 stating he would not accept the   transfer and that he was reverting back to his former site.

An Appeal Hearing took place on 31^st March 2016.   The outcome was to uphold the transfer and the formal written warning. Also   other options on sites were presented to the Complainant and the Complainant   responded on 11^th April 2016 stating he would not accept any   alternative site. The Respondent confirmed to the Complainant by letter dated   15^th April 2016 that his   contract of employment provided for such changes of location and he was   afforded a final opportunity to reconsider and he was informed that if he did   not correspond with the Respondent by 22^nd April 2016 the   Respondent would have no alternative but to terminate his contract of   employment. The Complainant did not respond and the Respondent wrote to the   Complainant on 6^th May 2016 issuing him with his P45 and   outstanding annual leave entitlements.

The Representative of the Respondent referred to a number   of decisions of the Courts to support their argument that they had acted in a   reasonable manner at all times of the process.

The Complainant stated that he had lodged a complaint of   Bullying by his Supervisor and that following his complaint the Company had tried   to move him from the site on which he had worked since the commencement of   his employment in 2008. He stated that nobody from the Respondent Company   tried to resolve the issue. He stated that he did not agree with any decision   from the Respondent to remove him from this site. He stated that his   Supervisor is still working on this site. He stated that SIPTU were involved on his   behalf and sought to resolve the issue but this was not possible. He stated   he was unfairly dismissed as he was the employee being bullied.

He stated that he had been in receipt of Jobseekers   Benefit from April 2016 and he had gained employment in November/December   2016 working 20/24 hours a week and was paid €10.00 an hour. He is seeking   compensation.

On the basis of the evidence from both Parties, including   a detailed written submission with supporting documents from the Respondent I   find as follows:  The Complainant was employed with a Named Contract Cleaning Company and   following a Transfer of Undertaking the Complainant transferred to the   Respondent Company. He had been issued with a written statement of his terms   and conditions of employment by the Transferor in February 2008. This   specifies the site location he was to work at.

The Complainant did write a letter of complaint on 15^th   January 2016 naming his Supervisor. This issue was the subject of a separate   complaint to the WRC and a decision has issued.

Both Parties confirmed that the Complainant was on   unauthorised absence from work from 19^th January 2016 to 26^th   January 2016 and that he had not provided a medical certificate to cover this   absence. He was requested to contact a named person of the Respondent   Company. The Complainant responded in relation to an alleged incident on 19^th   January 2016.

There was an investigation meeting held on 8^th   February 2016 in relation to a number of specified issues outlined in a   letter dated 3^rd February 2016. He was afforded a right of   representation. The Complainant was represented by SIPTU. He was provided   with the minutes of this meeting and copied to the Hearing. Following this he   was invited to a Disciplinary Hearing on 24^th February 2016 with a   right of representation again. The outcome was to issue him with a written   warning and a change to an alternative site nearby to commence on 16^th   March 2016. This was communicated to the Complainant by letter dated 11^th March 2016.   He was afforded a right of appeal. The Complainant replied on 16^th   March 2016 stating he did not accept the transfer to a new site.

The Appeal Hearing took place on 31^st March   2016. The Complainant was represented by SIPTU. The outcome was to uphold the   warning and transfer to an alternative site. He was also offered a transfer   to three other alternative sites. The Complainant would not accept a transfer   to any alternative site following the outcome of the Disciplinary and Appeals   Process.

15^th April 2016. The Respondent again wrote to   the Complainant with an offer of four alternative sites but the Complainant   refused to accept a transfer. He was informed that if he failed to accept an   alternative site his employment would be terminated. He was issued with his   P45 by letter dated 6^th May 2016.

I find that the Complainant was the subject of a number of   complaints and he also had an unauthorised absence from work from 19^th   to 26^th January 2016. The Complainant was the subject of investigation,   disciplinary and appeals process, in accordance with the Disciplinary   Procedures of the Company, provided to the Hearing. I find that all three   processes were conducted in accordance with fair procedure and natural   justice and complied fully with S.I.   146/2000.

I find that the Respondent acted in a reasonable manner in   that he afforded the Complainant four alternatives sites with no loss of   wages or conditions but the Complainant refused and the Complainant was   unable to explain to the Hearing why he had refused four offers of continued   employment at alternative sites.

I note from a statement from the Department of Social   Protection that the Complainant was in receipt of Jobseekers Benefit from 30^th   June 2016 to 21^st September 2016.

In accordance with Section 8 (1) (c) of the Unfair   Dismissals Act, I declare this complaint is not well founded.