Complainant

Respondent

Anonymised Parties

A Graphic Designer

A Print Company

Representatives

SIPTU

None

Act

Complaint

Reference No.

Date of Receipt

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

CA-00005870-001

15/07/2016

The complainant worked for the respondent between June 2007 and May 2016. She was dismissed on grounds of her performance. She asserts that the dismissal was unfair, which the respondent disputes.

The company director outlined that the respondent company had been in receivership and that they had challenged the appointment of the receiver. In February 2017, the receiver was removed with the agreement of the “vulture” fund. The company director said that the respondent was a small design company, which sells design hours. Each job has a unique number and the designers record their time on the job. This is how invoices are raised and must be done in a timely manner to ensure cash flow. The respondent works with multinationals that have automated systems. It was important that invoices be raised on time and accurately.

The company director said that the respondent operated a small, open plan office. He first raised an issue with the complainant’s performance on the 4^th February 2016 and this took place in the office as they sat close by. He commented that the complainant was the most enthusiastic, energetic member of staff, but issues had arisen a couple of years previously. She had completed a Masters qualification and also had a prolonged period of sick leave. The company director said that he gave the complainant a fair and responsible opportunity to address issues. There had been follow-up letters on the 31^st March and the 29^th April 2016. The incident of the 19^th April 2016 relates to 900 booklets with an incorrect lay-out. It was offset and unusable. He had written to the complainant about this issue but there was no response. His letter of the 29^th April 2016 referred to an issue arising in March 2014 where the complainant put client information on her laptop. This was a significant breach of confidentiality. It had never happened before that a staff member would download information onto their laptop. The company director referred to the contents of the letter of dismissal of the 29^th April 2016.

It was put to the company director by the complainant that the letter of March 2014 had said that the matter was now closed, so it was unfair to rely on it in the letter of dismissal of the 29^th April 2016. The company director agreed that the March 2014 incident was closed and it was not the basis of the dismissal. He wanted the complainant to be sure that the respondent had acted fair and reasonably. The respondent had soldiered through the recession and had maintained all jobs and salaries. They felt that there was no way forward and they had brought this to the complainant’s attention in a polite, business-like way, but the complainant never took the opportunity. It was put to the company director that there was only one PC that five or six staff had to use to enter information on jobs. It was put to the company director that, as an example, the entries for the 8^th, 9^th and 10^th February 2016 could only be entered on the 11^th February 2016. It was also put to the company director that there was no evidence of actual financial loss. The company director replied that everyone in the office has their own PC and one PC has the IT programme to enter job details. It was not an explanation that staff could not do it on time. The company director said he raises daily invoices, so this requires that staff to provide timely and accurate information. The IT programme had been used for twenty years. It was further put to the company director that the complainant had nine years’ service and was enthusiastic. It was unfair to take account of the complainant’s illness; he replied that he had not taken this into account. He had not wanted to hold meetings in the formal setting of the meeting room. He had written to the complainant to let her know of the issues. He could not recall whether he had handed the letter to the complainant. The company director was asked whether the letter of the 4^th February 2016 refers to a disciplinary matter and informs her of the consequences; he replied that this was self-evident from the text of the letter. He had to secure cash flow so he required the information. The complainant did not provide the information and never explained why. It was put to the company director that the letter of dismissal had been left on her desk on the 29^th April 2016 during her lunch break; he replied that he left work at lunch time due to a personal issue. The company director was asked what would happen if the complainant had a big job over a couple of days; he replied that the respondent required work to be entered daily and he could have been in a position to invoice for part of a job. This also prevented large gaps when someone could not return to work because of illness. The company director was asked why he had not met the complainant; he replied that the complainant knew what the situation was and what was at stake. They were all under pressure. It was put to the company director that the complainant did not say anything as she thought everything would blow over; he replied that the complainant had been responsive in the past. Staff could come and go at different times and the complainant had never approached him. Everyone knew the importance of the daily input. The letters were clear that this was not something that would blow over. It was put to the company director that the letter of the 31^st March 2016 refers to a termination meeting; he replied that he did not invite the complainant to a meeting further to this letter. The company director was asked about the financial loss incurred by the respondent; he said that he could not answer the question as it was not just a question of loss. It was crucial when dealing with multinational companies. He had raised the issues informally on many occasions, starting in 2015. He had given the complainant a polite, courteous and positive letter.

The complainant outlined that she was dismissed without fair procedures, including no face-to-face meetings and no appeal. In evidence, she outlined that there had been a problem with the IT programme, which was not flexible. The respondent had spoken about replacing the system. They were under pressure to get work done and left entering jobs to the end of the day. They had to input dates, job titles and information about each job and the system was prone to crash. She commented that she had a good relationship with the company director and her Masters had helped and not interfered with her role. She had raised a different issue with the respondent and when it was not willing to take her view on board, she knew there was no point in raising issues. Members of management had raised the issues regarding the IT programme and said they were looking at alternatives. She said that staff were fully aware of the pressure. She was surprised to get the letter of the 4^th February 2016 as the company director had approached her in a friendly fashion. She said that having received the letter of the 31^st March 2016, she improved how she made entries to the IT programme and stayed back to comply. It was not a matter of her not deliberately entering information. She said that some of the missing entries in February and March 2016 was pro bono work, which was not invoiced, for example for a named school.

The complainant said she was devastated to get the letter of the 29^th April 2016. It was a complete surprise and made her upset. The respondent asked her to work until the end of the day, but she could not. She said that the incident of the 19^th April 2016 involved a pro bono job of 900 booklets for a school. The first booklet had been perfect but there were issues with later booklets. She only became aware of this later. She commented that the respondent had not provided information for April 2016 to show her improved entry of data into the IT programme.

The complainant said she was ashamed of the circumstances of her dismissal. She found new employment in January 2017. In the interim, she lost her savings and her partner had to leave college to work. She said that her salary with the respondent had been €42 – 44,000 per year, while she was now in receipt of an annual salary of €40,000.

The complainant began her employment on the 20^th June 2007 and came to an end on the 31^st May 2016. She asserts that her dismissal was unfair, while the respondent asserts that it was fair because of shortcomings in her performance. Prior to the dismissal, the respondent wrote to the complainant on the 4^th February 2016, the 31^st March 2016 and the 29^th April 2016. The letter of the 31^st March 2016 is accompanied by a spreadsheet, detailing 18 incidents where the complainant delayed entering her work. The letter of dismissal refers to a 2014 incident, which the company director states was not the grounds of dismissal. The letter refers to an incorrect entry with missing digits and the incident involving 900 booklets. The complainant stated that this had been a pro bono job and she had not noticed the issue as the first printed booklets were perfect. The letter of the 29^th April 2016 does not list incidents as per the spreadsheet attached to the earlier letter.

While I was supplied with the complainant’s contract of employment, I was not supplied with a disciplinary policy or a policy to address shortcomings in performance. The respondent wrote to the complainant on three occasions prior to her dismissal. The first letter raises the issue of entries to an IT programme to allow the respondent bill for work. The second letter addresses specific shortcomings, which the complainant says she addressed. The complainant also refers to the IT programme being outdated and prone to crashing, as well as queues of staff waiting to enter their work on one terminal at the end of their working day.

Having considered the evidence and submissions of the parties, I find that this is a dismissal that falls short of discharging the onus on the employer to show that the dismissal was not unfair, as provided in section 6 of the Unfair Dismissals Act. The respondent raised issues regarding entry into the IT programme, which the complainant addressed. This is evident as the April letter is not accompanied by a spreadsheet detailing further incidents of non-entry. A thread in this case is the absence of any financial loss on the part of the respondent. It refers to the possibility of loss being incurred but it is not clear what loss, if any, the respondent incurred. It referred to the possibility of invoicing for work daily, as opposed to when the whole job was finished. Several the jobs on the spreadsheet were for the same piece of work. No evidence was advanced to show which of this the respondent could have invoiced for these entries before the work was completed. In respect of the items contained in the April letter, no evidence of loss was adduced for the job with the missing digits. The job for 900 booklets was pro bono and it was not clear what error the complainant made to cause some booklets to be offset.

Aside from the substantive grounds for dismissal, there were also procedural shortcomings. The complainant was not asked to attend meetings to address these issues and her dismissal followed in rapid course after three pieces of correspondence. The respondent had plenty of very positive things to say about the complainant and they should have played a much greater role in considering alternatives to dismissal. There was no evidence of any alternative being considered.

I appreciate that the respondent has sought to weather the recession, including tackling a receiver appointed over its assets. There were, however, significant shortcomings in the dismissal of the complainant, which had financial and personal consequences for her, after her nine years’ service for the respondent. I find that the dismissal was unfair. Per the Unfair Dismissals Act, the complainant is entitled to recover for financial loss arising from the dismissal. The complainant’s employment came to an end on the 30^th May 2016 and she was paid until this day. The complainant’s evidence was that her salary was between €42 and 44,000 per annum. She found new employment in January 2017. She is entitled to recover her financial loss for June 2016 to December 2016. This is a period of seven months. Taking the higher figure, the complainant is entitled to redress of €25,000 for this period. Her evidence is that the role she obtained in January 2017 pays €40,000 per annum. The complainant incurs an ongoing loss since taking this new job. I award an additional €5,000 for this loss. The sum of the losses of €25,000 and €5,000 is €30,000.

CA-00005870-001

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the complaint made pursuant to the Unfair Dismissals Act is well-founded and the respondent shall pay to the complainant €30,000 as redress for the unfair dismissal.

Unfair Dismissals Act

Performance