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-00005068-001

08/06/2016

The Complainant was engaged by the Employer for a period   of about three years. On the 31^st of March 2016, the Complainant’s   employment was terminated by her Employer in circumstances where they say the   Complainant was on Notice of their intention to terminate her employment if   she did not do three things, namely -

Work inside the terms of her job description

Communicate fully and constructively with all staff   members

Sign her Contract of Employment

The Complainant did sign her Contract of employment on the   31st day of March 2016 though with the proviso that this was subject to   “legal” opinion being obtained. The Respondent did not accept this version of   her Contract as it arrived beyond the cut-off point and was in any event only   provisionally agreed to and therefore not agreed to.

The Employer does not deny the fact of Dismissal and in   those circumstances the Burden of Proof rests with the Employer to   demonstrate that it has acted reasonably and fairly in all the circumstances.  

A Protected Disclosure issue was not pursued by the   Complainant.

The Complainant presented as a hard working and committed   employee working in a field that requires delicacy and ability. When the   Complainant was promoted she was unhappy that her remuneration did not match   that of others in the organisation. The Complainant sought to have her salary   aligned by reference to an external recommendation.

Over time the Complainant became increasingly concerned at   the manner in which the Employer was being operated. The Complainant was   unhappy with how designated funds were being assigned and was particularly   unhappy that persons being engaged by the Respondent were not Garda vetted   and posed a threat to the children and young persons with whom she worked.

The Complainant initiated a Grievance process. The   Complainant believes the mediation process that was offered to her was   insufficient and did not have the power to conduct a full investigation into   the affairs of the employer. The Complainant lost trust and faith in the   Respondent’s Management.

The Respondent’s evidence was presented through the   Director (DG) the Chairperson (ROF) and their appointed HR Consultant IK.   Their evidence was that the Complainant was very critical of the way in which   this not for profit organisation was being operated. The Complainant found   fault with all aspects of the operations and found fault at a personal level   with the way the workplace witnesses handled many particularised matters. The   Complainant implied wrongdoing when she suggested monies were being diverted   and/or misused. The Respondent witnesses were unable to satisfy the   complainant in respect of her allegations. The Respondent witnesses were   upset that the Complainant was suggesting that their handling of child   protection issues was endangering the very persons they sought to empower and   help.

The Respondent witnesses are satisfied that they have   acted with propriety and integrity at all times and gave evidence to the   effect that there have been no internal difficulties in the workplace which   applies all the strict and appropriate standards required of it.

The Respondent’s case is that there was an acknowledged   Grievance process initiated by the Complainant. In response to this, the   Respondent had attempted mediation with IK. The Complainant had taken part in   this process though subsequently (and in response to IK’s findings) the Complainant   declared herself not satisfied with that process.

The Employer indicated a willingness to continue with the   Grievance process if that was the Complainant’s wish.

At the same time, the Employer indicated that the Employee   – even whilst maintaining a grievance process – would be expected to work as   appropriate in the workplace. In particular, the Complainant had to be   expected to take management and direction from her Line Manager DG and any   other Managers. In addition, the Complainant was invited to sign the Terms of   her new Contract of Employment which she had refused to sign for upwards of   three months.

I have carefully considered the evidence adduced over the   course of two days of hearing. I have   reviewed the submissions prepared by both sides and have examined the   documentation provided.

The Complainant herein started with the Respondent   Employer in and around July of 2013. At that time the Complainant was a part   time youth worker working with young persons from the Traveller Community.   The Respondent is a not for profit organisation which works closely with the Traveller   Community and it’s aims are to provide an inclusive and dynamic organisation   providing a wide range of programmes and services to meet the needs of   Travellers and which further, advocates for the inclusion of the Traveller   community as a recognised and valued ethnic group within Irish Society.

The Respondent relies on external sources for funding. Various   Government bodies/Departments and/or charitable organisation provide such   funding which is used to pay for the salaries of workers and is sometimes   secured for the purpose of designated and specific programme implementation.   I accept that the funding can be precarious and it is therefore difficult to   give security from year to year.

The Complainant worked with the children and young   people’s programme which seeks to provide young people with the opportunity   to actively identify, explore and participate in activities and issues of   importance to them. There was no problem with the Complainant’s work and she   was considered to be very good as a youth worker. This is reflected in the   fact that in 2014 the Complainant was promoted to the position of Senior   Youth worker and in July 2015 she was promoted to Programme Manager of the   children and young people’s programme which involved a modest raise in   salary. The position was for a fixed term due to expire on the 31^st   of December 2015 though it was assumed (subject to funding) this position   would be renewed for 2016.

The Complainant took up the position of Programme Manager   but there was a delay in respect of the provision of a contract of   employment. The Respondent was undergoing internal changes and was reviewing   certain issues at the time which delayed matters. However, a number of   meetings held between the Complainant and the management before the end of   2015 demonstrated that the Complainant had some issues with the proposed   Contractual terms. For example the complainant was reluctant to have children   under ten years included in her remit. The Complainant was unhappy about the   salary level and believed the position should attract a greater salary. The   Complainant had since 2014 been asking to have her salary (and that of her immediate team)   aligned with sector payscales. The   Respondent opted to align the Complainant’s salary with the Programme Manager   that she had replaced (BK) though the Complainant sought the same salary as a   longer standing Programme Manager (whose salary appears to have been   red-circled). The Complainant was not   happy to sign the Contract provided to her as she felt the Employer had not   adequately addresses the issues in the Contract – such as pay. Ultimately the   Complainant indicated she had to consult with her Union.

It is noted that another issue had previously been raised   by the Complainant and whilst it had nothing whatever to do with the terms of   her proposed Contract of Employment, it was something that the Complainant   felt very strongly about. In particular the Complainant had in mid 2014   become aware of the fact that a certain gentleman had been engaged by the   Respondent Company to work with the older children in the role of Drugs and   alcohol education and prevention. How this person came to the Complainant’s   attention is unclear but the Complainant was concerned that this individual   did not have the appropriate Garda Vetting required to work with young   people. The complainant raised this issue repeatedly with Senior Management   (the Director DG) and the issue was noted and the Complainant was assured   that this Garda Vetting was in the process of being completed. The   Complainant had resisted DG’s suggestion that the individual in question run   a second programme with the Complainant’s young people in December of 2014   and this had led to a strain between the two individuals. Ultimately it is   noted that the Respondent by way of response to the Complainant’s concerns set   up what was called a Garda Vetting and child protection Sub Committee to deal   with this issues the Complainant had been raising at Board level and the   Complainant was included on the Sub Committee.

A meeting held with the Complainant and the Chairperson   and a Board member on the 11^th of November 2015 was set to deal   with the ongoing question over the suitability of the individual in charge of   the Drugs and alcohol education and prevention programme. In this context,   the Complainant in effect challenged the Chair and Board Member of not   fulfilling their obligations and responsibilities with regard to ensuring the   safety of young people.

On December 11^th 2015 the Complainant wrote to   the Chairperson of the Respondent Board of Management (ROF) as well as a   Senior Manager (SC) invoking a formal grievance procedure as provided for in   the workplace . The Complainant raised many issues

The Complainant stated that she felt that the Respondent   Director (DG) was intimidating her and treating her unfairly. She stated she   was being overlooked, given no support and singled out for negative   treatment. The Complainant raised issues regarding funding practises, child   protection procedures and Garda vetting The Complainant believed these issues   when raised by her led to her being targeted. The Complainant raised the   issue of how her salary was being calculated incorrectly and at a much lesser   rate than she was entitled to. The Complainant felt her Health and Safety   concerns when raised were not dealt with – for example the servicing of the   mini bus had also been previously raised by the Complainant. The Complainant   pointed to inconsistencies between the external funded position of Programme   Manager and the position that management expected her fulfil. The Complainant had previously stated that the Youth Programme was being denied   funding specifically intended for it and at the same time questioned whether   targeted funding was going to the wrong programme recipient. The complainant   suggested that the Management’s failure to deal with the issues raised around   her Contract and Job description was putting the whole youth programme at   risk. Additionally the Complainant felt she was being excluded from the child   protection sub-committee meetings, which committee she herself had been   instrumental in setting up and even when meetings were held – recommendations   were not being implemented.

In this same letter the Complainant states:

“I feel I   have tried to raise my concerns in a professional manner which has resulted   in me and my team being isolated within the organisation. The concerns that I   have raised have been trivialised and are often personalised so as to avoid   addressing the real issues. I am also made out to be the one causing the   problems and my issues and concerns continue to remain unresolved.”

The Complainant requested that an independent mediator be   called upon to address the concerns she was raising.

The Respondent was slow in taking up this Grievance and   almost appeared to ignore it in the weeks following it’s being submitted.   They did however address the issue of the imminent expiration of the   Complainant’s fixed term Contract. As the fixed term Contract up to the 31^st   of December remained unsigned, it was unilaterally decided by the Employer   that that Contract would be extended by a month to the end of January 2016.   This was to facilitate the Grievance process.

On January 6^th 2016 the Complainant’s Union   Representative rang up the Charirperson to remind her that the grievance   needed to be dealt with in a fair and impartial way. The Complainant herself   seemed to believe that the fact of having submitted the grievance meant that   she was effectively now excluded from being drawn into daily workplace   related activity and she was for the first two weeks of January trying to   avoid face to face meetings or conversations with DG in particular. The   Complainant also rebuffed a request by the Prevention and Education worker   from initiating a programme with her age group. There was by now, an unworkable   situation in the workplace.

Then on the 14^th of January 2016 the   Complainant was contacted by a Ms IK a Human Resource professional engaged by   the Respondent to mediate the situation. IK and the Complainant engage in   some email exchanges. To some extent the letter which had been received by   ROF raising the Grievance was in need   of being condensed as the Grievances raised therein were generalised lacked   clarity. IK was attempting to clarify what complaints she could deal with as   against those that the Complainant was not satisfied could be dealt with by   IK.

A further extension of the Contract of Employment was   notified in January and on February 3^rd 2016 the Complainant met   with IK in the company of her own Union official. It is noted that IK did not   consider herself to be undertaking an investigation into the workings of the   Respondent Employer – that was beyond her remit. IK simply wanted to see if   she could get the Complainant and the Employer through the impasse. She   proposed two separate meetings with DG and the complainant on foot of which   she would make recommendations. IK gave a considerable amount of time to the   Complainant when she met with her. Their discussion was far reaching and   covered all those aspects of the   workplace operations which were giving cause for concern to the Complainant. IK   indicated that she believed that the Complainant was happy with the way that   the meeting was handled.

The Complainant herself describes this meeting (which was   lengthy and in depth) as having covered:-

Her child protection concerns.

The False Reporting on funding Forms

The Unfair treatment she was getting with regards Payment.

IK having conducted the two meetings, wrote to the   Complainant directly on the 16^th of February, 2016. In her letter,   IK has assessed the situation in as neutral a way as she can.

In particular IK suggests that the legitimate concerns   raised regarding the Garda Vetting process of a particular individual have   now been dealt with and in fact gave rise to a much improved process being   adopted in the workplace. The ongoing anxiety on the part of the Complainant   is unnecessary and misplaced.

Regarding the issue of remuneration, in line with the   Respondent’s consistent assertions, the Complainant is getting the correct   rate of pay and is on a salary in line with the funding of that salary.

With respect to funding – in her submission I note that   the Complainant uses the world false when it comes to reporting on same – IK   is of the view that nothing untoward has been established and that reasonable   responses by the Employer have to be accepted as true. The problem appears to   be that if the Complainant does not agree with an explanation given she   cannot let it go. IK accepted the Boards Bona Fides and acknowledged the   Respondent’s commitment to integrity.

On balance, I can see that IK’s assessment gave the   Complainant very little comfort, but that is not to say that IK was   incorrect. IK did go on to invite the Complainant to consider how best to   move on with her employment and in particular with regards re-building some   sort of relationship with DG for the purpose of performing her work with as   little friction as might be possible. It was noted that the Complainant and   DG by now only communicated by way of email.

Neither the complainant nor her representative opted to   respond to IK or make any comment to the Respondent with respect to the   observations made by IK. No response was ever made.

Then on the 23^rd of February 2016, the Chairperson ROF wrote to the   Complainant suggesting that there are a number of options still open to the   Complainant. In particular, the Complainant was assured that if she was   unhappy with IK’s findings and suggestions then the Respondent had no   difficulty with the Complainant pursuing her Grievances and the Respondent   would engage an alternative external agency to deal with that. Alternatively,   if the Complainant was inclined to draw a line in the sand, as it were, the   Respondent would “be happy to   participate in any exercise that improves communication and enhances the   workings ” of the Respondent Company.

ROF goes on to state that there is an obligation on all   staff – even those engaged in a Grievance process – to work normally.   In this regard ROF insists that whatever path the Complainant chooses she   must:

Work inside the terms of her job description

Communicate fully and constructively with all staff   members

Sign her Contract of Employment

To allow the Complainant some breathing space, the   Complainant’s Contract of Employment was extended for a third consecutive   month to the end of March 2016 (March 31st). ROF emphasises that the three   criteria must be met otherwise the Contract of Employment will be terminated   with no extension. ROF urges the Complainant to engage constructively with   her employer – “you are a hard worker   and we would like to see you continue in.. (the Respondent company)”.

The Complainant was not willing to engage and I note in   her submission that at this point she says

“I feel the   chairperson.. (ROF).. was fully involved in the failure to ensure staff were   Garda vetted by the .. (Respondent).. , she is also responsible for the   signing off on funding applications and Reports and she was not entirely honest   throughout the pay scale issue. It would be fair to say that it is not in the   chairpersons interest to give me a fair hearing”

Whilst I   appreciate that the submission is written well after the event, the criticism   of the Chairperson is stinging calling into doubt the Chairperson’s honesty   and the Chairperson’s fairness. The Complainant said that she felt that the   Chairperson was seeking to discredit the Complainant and make out that her   work was not up to standard. My understanding was that the Complainant’s work   was excellent and was not criticised. The problem lay in her interaction with   certain personnel.

The Chairperson   followed up her first letter with a second letter dated the 22^nd   of March 2016 and a phone conversation on the 22^nd of March. The   Complainant did not confirm that she intended signing her Contract or   changing her approach to her colleagues. In evidence, I was told that the   Complainant was not carrying out key aspects of her employment and was not   engaging with her line management. The Complainant also failed to suggest   that she was willing to engage in any process of engagement, and did not   indicate an intention to pursue any of the Grievances raised. The Employer   still did not know what the employee wanted having already set up a costly   mediation process which remained unacknowledged.

The Complainant did not communicate with her Employer and   was not at work for the last few days of March 2016. On the 31^st of   March, pursuant to their warning, the Respondent terminated the Complainant’s   employment by letter. This was done by Courier at around midday on that date.   The Complainant had on that same day submitted by hand a signed (subject to   legal advice) Contract of Employment. This was not in the spirit of what was   being asked of her and the Employer did not resile from its decision to   terminate the employment. A Contract which retains its “subject to Contract”   status is not a Contract.

The Complainant’s employment was therefore terminated   following two letters of warning on the last day of March 2016.

I must decide whether the termination of the employment in   this manner and on this date, was reasonable in all the circumstances and   whether there were substantial grounds justifying the Dismissal?

On balance, I find that the Dismissal was fair and   appropriate and came at the end of a long process of futile interaction   whereby the Complainant refused to accept the Bona Fides of her Employer. I   accept that any reasonable person would accept that the Organisation was   being operated in an entirely appropriate manner. Implied allegations of   misappropriation or misdirection of funding were very serious and very   damaging and without basis. Allegations of endangering children were again   without foundation and went to the heart of what this Respondent represented.

There was no Disciplinary process, though one might have   been justified. There was instead a Grievance process initiated by the   Complainant on foot of which the Respondent became answerable to the   Complainant. In the circumstances, I accept that the Respondent acted very   reasonably when it appointed the Mediator and engaged with the process. That   process found that there was nothing suspicious or untoward about the way   that this not for profit organisation was being operated.

Even after having had the benefit of listening to the   Complainant I do not claim to fully understand her concerns. I do not doubt   that her intentions were good but she   became entrenched and beyond being able to accept facts presented. I do not   accept that the Employer sought to “personalise   so as to avoid addressing the real issue”.

The Complainant was given every opportunity to remain in   the workplace. She was invited to continue with her Grievance and/or try and   build bridges. The Employer was entirely justified in seeking to regularise   the workplace wherein an atmosphere of hostility had festered for too long.   It is not acceptable that a subordinate seeks to ignore a line manager in the   manner that the Complainant was doing.

Whilst I accept that the issuing of the ultimatum   (contained in the Chairpersons letters) is highly unusual, I believe in these   circumstances it was justified. The Complainant was fully on Notice that she   was putting her position in jeopardy. By the 31^st of March 2016   the Complainant had failed to abide by any one of the three (not   unreasonable) demands being made by her Employer and the resulting   termination arose out of that fact.

The Complaint fails under the Unfair Dismissals Acts 1977   to 2015