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-00009591-001

08/02/2017

The Complainant contends she was unfairly dismissed, for   allegedly taking unauthorised smoking breaks, failing to keep medical certs from staff in a safe place, and failure to lead   by example as Supervisor.

The Complainant was a Cleaning Supervisor with the Company   at one of its client’s premises. She   has been through a number of transfers of undertakings. She contends that various practices had   evolved in her workplace including   taking a few pulls of cigarettes when   taking out rubbish, but this did not constitute taking unauthorised cigarette   breaks. However, one of the client’s   personnel made a complaint against her which led to her dismissal. She was also accused of failing to keep   medical certificates from staff in a safe place. However, the facts are as follows: the   canteen did not have a locked cupboard in which to keep the certs, and the   certs were immediately faxed to HQ on receipt.   It used to be the practice that management   would collect the certs until the most recent transfer of undertakings. The Complainant was subjected to a   disciplinary procedure, and expressed her apologies, however, she was   dismissed. It is contended that this   dismissal, taking place after almost 15 years service in her job was unfair   and disproportionate.

The Complainant was the Supervisor on site where the   Respondent operated a cleaning contract for a Public service body.   Her normal working hours were 4.30pm to   7pm.   From in or around 2015, the   Complainant had to be spoken to about a number of issues, her behaviour in   front of clients, her failure to achieve cleaning standards necessary and her   late notification of her inability to attend work.   In March 2016, following a disciplinary   process, a final written warning was issued to the Complainant for attending   work while under the influence of alcohol.     In August 2016, it came to the attention of the Respondent that the   Complainant appeared to be taking unauthorised breaks from work. She had been observed smoking while she   should have been at work. As the shift   involved two and a half hours there was no provision for breaks. The disciplinary process was invoked during   which it was established that the Complainant had been told on 30^th   August 2016 that no employees were to take smoke breaks, and yet she   continued to carry on this practice which she claimed had been the practice   before the current Respondent took over the contract. Shortly after the investigation meeting, it   came to the attention of management that medical certificates from staff were   stored in an unlocked drawer. A   further investigation meeting was called and the Complainant confirmed that   she would store the employees’ medical certificates when they were handed in   to her, in a drawer in the kitchen. As   a consequence of these two investigations, the Complainant was invited to a   disciplinary meeting, which took place on 12^th October 2016. The issues raised were:

-            The taking of unauthorised breaks,

-            The unauthorised storage of medical   certificates and failure to pass them on the   Area Manager

-            A supervisor setting an unacceptable example   to the other employees.

It was established that although management   had clearly instructed the Complainant that taking smoking breaks was   prohibited from 30^th August 2016, the Complainant continued to do   so.   Had the Complainant been a   Cleaner this failure to comply with a clear instruction would have been   regarded very seriously. However, the   fact was that the Complainant was a Supervisor and had a responsibility to   set an example to the other members of staff.   There was a blatant disregard to the   company’s rules, and a total undermining of management authority.   As already referred to the Complainant was   on a final written warning, while this was not a repeat of the same matter,   she was clearly advised at the time that if further disciplinary action was   necessary, this could result in termination of her employment. The Respondent decided that in all the   circumstances, there was no alternative but to terminate her employment.   An appeal was conducted but the decision   to terminate stood. It is argued that   the Complainant was given every opportunity to mend her ways and to work in   accordance with the company’s instructions.   By failing to do so in such a blatant manner it is clear the   Complainant was not willing to set an example and she could no longer be   trusted to carry out her duties as a Supervisor. It is clear that the Company had no   alternative but to terminate the Complainant’s employment in accordance with   the Company’s disciplinary procedure.

Section 6 (1) of the Act provides:

“6 (1) – Subject to   the provisions of this section, the dismissal of an employee shall be deemed,   for the purposes of this Act, to be an unfair dismissal unless, having regard   to all the circumstances, there were substantial grounds justifying the   dismissal”.

In considering the evidence in this case, I have taken into   consideration the substantial grounds put forward by the Respondent and   having regard to all the circumstances whether these grounds justified   dismissal.

The Complainant was dismissed for the following reasons   cited in the dismissal letter: alleged taking of unauthorised breaks, failure   to pass medical certs to Area Manager, storage of staff medical certs in a   manner that compromised confidentiality and failure to lead by example as   Supervisor on site.   The Complainant   also had a final written warning on an unrelated matter.

The Complainant had almost fifteen years service in her   employment. It is not clear if this   was taken into account by the Respondent when deciding to dismiss her.   There is no doubt that the Complainant   contributed to her own difficulties, especially when failing to observe   management’s instruction not to take smoking breaks.   In relation to the charge that she failed   to store medical certs in a safe secure place, I find that some custom and   practice evolved and in the new situation,   there was some onus on higher management to provide a secure locked   drawer or to ensure the original certs were provided to HQ. The Respondent clearly concluded that the   Complainant was not suitable to carry out her duties as Supervisor. However, the question arises was the   penalty of dismissal proportionate to the transgressions?  I do not find any evidence that the   Respondent considered any other penalty, such as demotion.   I find the imposition of the most severe   penalty that of dismissal from the employment was disproportionate in this   case.   I uphold the Complainant’s complaint that she   was unfairly dismissed.

I consider the remedies of re-instatement or re-engagement   to not be suitable as the trust in the employment relationship is   broken.   Taking into account some   responsibility the Complainant bears for her predicament, I uphold her complaint   and I award the Complainant the sum of €3,380.