EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD383/2013
APPEAL OF:
Jacqueline Coen and Denis Coen T/A Health Care Facility Management
- Appellant
against the recommendation of the Rights Commissioner in the case of:
Johanna Zaskorska
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2015
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr. W. O'Carroll
Ms Henry
heard this appeal at Galway on13th March 2017
and 14th March 2017
Representation:
Appellant: In Person
Respondent: Lorraine Lally BL, Galway Citizen Information Services, St. Augustine Street, Galway
The determination of the Tribunal was as follows:-
Background:
The respondent employee (EE) was employed as a Facility Accommodation Person from the 1st of March 2011 until her employment terminated on the 17th of July 2012 and was paid €1,578.22 per month.
The appellant employer (ER) contends EE was dismissed for gross misconduct. EE lodged a claim for Unfair Dismissals Acts, 1977 to 2007 with the Rights Commissioners. Having heard the evidence on the 4th of December 2012, the Rights Commissioners found EE was unfairly dismissed, that the procedures used by ER were flawed and that the disciplinary sanction was disproportionate. The Rights Commissioner awarded EE the sum of €8,000. ER appealed the Rights Commissioner’s Recommendation / Decision to the Employment Appeals Tribunal on the 2nd of April 2013.
Appellant’s Case:
DC, co-owner of the appellant business, gave evidence. DC explained the nature of the appellant’s business was the cleaning of Consultants suites in a private clinic. The respondent was the only employee of the appellant business employed to carry out these duties. DC stated that protocol was central to the operation providing cleaning services in an extremely sensitive area. Company policies and procedures must be adhered to. DC told the Tribunal that the respondent was fully trained to carry out her duties and was fully aware of company policy.
In April 2012 three separate incidents of theft occurred in various Consultant suites resulting in the Gardaí interviewing staff in the clinic, including the respondent. Following this, DC met with the respondent and the Manager (CB – who was not available during this two day hearing to give evidence). The issue of security and protocol of signing in and out of keys from reception for Consultant’s suites which were locked was discussed. DC said that he told the respondent not to enter a suite without signing out a key as they were private rooms owned by the Consultants and they could only be cleaned on agreed dates.
On the 13th of July 2012 DC received an email from a Consultant (JK) complaining that a cleaner entered his room while he was inside. JK felt the cleaner should not be in the room unless she was cleaning it and found it unusual behaviour. DC assured JK he would look into the matter.
On the 17th of July DC asked CB to contact the respondent and ask her to meet with him. The respondent attended the meeting in the boardroom with DC and CB. DC told the Tribunal that he had a letter of dismissal pre-prepared but was not expecting to deliver it if the respondent could give him a valid reason as to why she had gone into the room. He read out JK’s email. DC said the respondent gave two different versions as to why she had entered the room. DC felt, having heard this, that the respondent’s actions were a breach of security rules and gross misconduct. He handed her the letter of dismissal and advised her she had been dismissed.
Under cross-examination DC said the respondent had been dismissed because she had changed her version of events in respect of the night in question when presented with the facts and because she had breached security.
When asked if the respondent was given prior notification of the meeting of the 17th of July 2012 and its important contents, DC replied that it was CB who had contacted the respondent to request her attendance at the meeting.
Respondent’s Case:
The respondent gave detailed evidence of her previous experience in the cleaning industry. She agreed she had been given orientation and training and was fully aware of the protocol of signing keys in and out at reception.
On the 13th of July 2012 she stated that she went to the suite in question and knocked on the door. She was told to enter and on seeing JK present, she decided not to disturb him but only checked the paper towel supply and left. She explained that the reason she had entered the room was because she had been previously told there was an issue with paper towels. She stated that two weeks previously the replacement cleaner (in her absence) had not replenished the paper towel supply in that suite.
The respondent attended work as normal on the 16th of July 2012. The following day, the 17th of July, CB contacted her by phone and asked her to attend a meeting with her and DC in the boardroom. She stated that she was not given any information as to what the meeting was about or advised to bring some one with her. On arrival she noticed DC sitting at the table with a letter laid out before him. DC read out JK’s letter and asked her for her version of events. The respondent told the Tribunal that she did not fully understand the contents of JK’s email. The respondent explained to the Tribunal that although she had been living in Ireland since 2010 her knowledge of the English language was “not great”. DC then handed her the letter of dismissal and told her to go home.
The respondent gave evidence of her efforts to mitigate her loss of earnings since her dismissal.
Under cross-examination the respondent stated that she felt she had been mistreated and had not been given the opportunity to apologise to JK for entering his room while he was inside.
She refuted when put to her, that DC had met her on a number of occasions during her employment to discuss procedures.
Determination:
The Tribunal has carefully considered the sworn evidence adduced in this matter.
It is clear from the evidence adduced in this matter that there was a number of procedural flaws in the manner in which the appellant / employer dismissed the respondent / employee. The dismissal of the employee must therefore be found to be unfair.
Having regard to all the circumstances, the Tribunal affirms the Rights Commissioner’s Recommendation / Decision awarding the sum of €8,000 (eight thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)