ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006760
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaner | A Facility Service Provider |
Complaint(s):
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-00009156-001 | 18/01/2017 |
Date of Adjudication Hearing: 17/08/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint..
Background:
The complaint, a cleaner, commenced employment with the respondent, a Facilities Services Company, in March 2006. He was dismissed on 2nd September 2016. He was paid €421.20 a week. The chosen redress of the complainant was re-engagement. The respondent's favoured redress was compensation. The complainant has failed to find employment since his dismissal. A complaint form was received by the WRC on 18th January 2017.
Summary of Respondent’s Case:
The respondent submitted a detailed written submission.
The complainant commenced employment with the company in March 2006. The Respondent submits that the complainant was fully trained by the company in cleaning standards and also received ongoing toolbox briefings and ongoing training in order to maintain standards.
However, by March 2008 the complainant started to be disciplined as a result of his failure to properly carry out his duties. The consequences of his failures being that the areas of which he was assigned were below the appropriate standards required and standards to which he had been trained.
In 2009 having received a final written warning the complainant requested that he be moved to a different area. He was moved as requested but disciplinary action was required on an ongoing basis.
The respondent submits that the complainant was warned on numerous occasions regarding his standard of work and his attendance.
In October 2015 the respondent initiated a disciplinary investigation regarding the claimant’s poor standard of work. The hearing resulted in disciplinary action being taken on 6 November 2015. This was a written warning and was to stand for nine months.
In May 2016 the respondent initiated a further investigation arising from an unauthorised absence. This resulted in the claimant being issued with a final written warning on 9 June 2016. The complainant did not appeal the final written warning.
A further incident arose regarding his standard of work in July 2016. The matter related to the cleanliness of an operating theatre. The outcome of the disciplinary hearing was disciplinary action should be taken and the complainant’s employment should be terminated. The respondent submits that the termination of employment came about because of the fact that the complainant was now on a final written warning issued only the previous June and also because he had received a verbal warning regarding the standard of work in November 2015. Therefore, within the space of eight months the complainant had gone through the disciplinary procedure, because of his poor performance and his attendance, to the final stage.
At the appeal hearing it was suggested that the complainant had not received notification of his final written warning and that the respondent should not automatically move to termination of employment. The claim that the complainant did not receive the letter came as a surprise to the respondent as he had received all letters previously sent to the same address, also he was aware of that he had attended a disciplinary meeting and never raised any question about not having received any follow-up to despite the fact that the matter was of a serious nature.
The complainant appealed the decision to dismiss him but was unsuccessful and his dismissal was confirmed by letter on 14 October 2016.
The company submits that the purpose of a disciplinary procedure is to ensure that employees are given an opportunity to improve where they are not performing satisfactorily. This can relate to any aspect of the work and is not confined to one specific matter. In this particular case, the complainant had a consistent history of poor performance work. The respondent pointed out that there are gaps between the different warnings which demonstrated that the complainant had the ability to work to a satisfactory standard but had consistently allowed standards to slip. There had only been one year when he had not been subject to some form of disciplinary action regarding his performance at work.
The respondent submits that in relation to the issues which arose in 2016, even if there had been no previous history, the normal operation of disciplinary procedure would have been reached dismissal stage.
The respondent believes that it has been more than fair with the complainant regarding his performance at work and that it is very clear that the complainant was capable of doing the work required of him and that he had been afforded multiple opportunities to resolve issues.
During the hearing the issue of the complaint's ability in the English language arose. A manager for the respondent stated that she had known the complainant many years and it was her view that he had never had any difficulty understanding English. She also stated that he was always asked if he understood what had taken place at any of their meetings and there were never any problems.
In oral evidence the complainant's line manager explained that they would always try to get someone not involved in the matter to investigate issues. She also stated that the complainant was well aware of the allegations that were made against him and he did have sight of the audit reports. The line manager stated that the reason to dismiss was based on "all the warnings for the same thing".
The same witness also stated that the operating theatres have to be clean, that, "we are taking chances with people's lives; we cannot take chances".
When asked about two lines of discipline (failure to perform cleaning duties properly and unauthorised absenteeism) crossing, the respondent put forward that disciplinary action is disciplinary action and that there is no distinction for different types of issues.
In conclusion the respondent submits that it has been more than reasonable with the complainant whilst he was employed with the company. The complainant cannot deny that he was afforded multiple opportunities to improve the standards of performance and failed to provide any reasonable explanation as to why he could not maintain the standards required. The final decision to dismiss was made on its own merits.
Summary of Complainant’s Case:
The complainant submitted a detailed written submission.
The complainant submits that the dismissal of the complainant imposed by the respondent was in breach of the Unfair Dismissal Acts, 1977-2015, in circumstances where the complainant was the subject of five fundamentally flawed investigation processes and four fundamentally flawed disciplinary processes. The complainant contends that throughout all five of the disciplinary processes, the respondent consistently breached the complainant’s right to due process. Each and every disciplinary process was flawed in circumstances where each was based on the fundamentally flawed investigation.
With regard to the first process the complainant submits that he was invited to a disciplinary investigation by letter dated 17 June 2015. It is noted that the purpose of this meeting is to investigate:
"The reasons of the poor audit results in the operation theatres and the reasons why the cleaning was not completed to the highest standard expected in the very high risk area in the operation theatres."
The complainant contends that the reasons set forth in the request to attend an investigation meeting do not constitute allegations in circumstances where they are vague, ambiguous and make no reference to any alleged actions and or omissions on the part of the complainant.
The letter dated 17th of June 2015 states; "I have provided you with a copy of the meeting notes and I wish to obtain your account of the incident". This sentence, according to the complainant, appears in every request for the complainant to appear at investigation meeting. However the complainant was not provided with a copy of the meeting notes at any stage of any process, nor was he provided with any further information or documentation in relation to the subject matter of the impending investigation meeting.
The complainant submits that during the investigation meeting, he was questioned in relation to an audit report which he had not received prior to the investigation meeting, was not privy to and remains a stranger to. It is submitted that the complainant was never notified of who his accuser was and was not given the opportunity to challenge his accuser nor the opportunity to question and or challenge any evidence against him. The respondent either failed to investigate the alleged incident adequately or breached the complainant's right to due process by failing to present all or any of the evidence against him including but not limited to any interviews or memoranda collected by the investigator.
The complainant contends that subsequent at the investigation meeting, the respondent failed to inform the complainant of the outcome of the investigation, as the matter progressed to a disciplinary the complainant submits that the investigation must have made findings and/or come to a conclusion which the complainant remains a stranger to. It is submitted that the investigation process lacks all and any credibility in circumstances where the process lacked any investigatory steps, failed to afford the complainant any rights to due process and is therefore fundamentally flawed.
The complainant was instructed to attend the disciplinary meeting on 25 June 2016 whip his line manager. The complainant submits that he is a stranger as to how the investigation process progressed to a disciplinary process in circumstances where there was an incomplete investigation process conducted by the respondent servants and/or agents. The complainant was a summonsed to a disciplinary meeting while he was still a stranger to who his accuser was, what the allegations against were and if anyone was interviewed as part of the investigation process and what if any evidence there was to suggest that the complainant was guilty of misconduct.
The complainant submits that the disciplinary hearing held on 25 June 2015 consisted of six questions posed by the complainant’s line manager. The complainant alleges that during the disciplinary hearing the complainant was shown a copy of an audit report, reputed to be a basis for this disciplinary hearing. This was the only documentation provided to the complainant was done so in a wholly unfair manner.
During the disciplinary meeting complainant submits that the line manager quoted from the notes of the investigation meeting. The complainant submits that if the disciplinary procedure was invoked against the complainant on the basis of notes from a fundamentally flawed investigation meeting, the disciplinary process as a whole is fundamentally flawed.
As a result of the fundamentally flawed process set out, the complainant was issued with a verbal warning by his line manager on 29 June 2015
The complainant appealed the decision of his line manager as per the appeals process set out within the respondent's disciplinary process. The appeal hearing was held on 20 July 2015. The complainant contends that it is clear from the statements made by the person hearing the appeal that this was an unfair and preordained hearing in which the complainant was not afforded any due process. The person hearing the appeal stated: "I don’t understand why you are appealing, the areas you cleaned failed". The complainant sought to have as appeal heard fairly and stated that there were staffing and workload issues, to which the person hearing the appeal replied by saying "we are reviewing the schedules". The complainant contends that the unfair nature of the hearing and the extent of the preordained and biased nature of the hearing are corroborated by the fact that the person hearing the appeal stated that the respondent had no alternative but to give a warning. The complainant’s appeal was not allowed.
The complainant submits that the investigation process as presented by the respondent is a guise. The investigation stage can only be described as a preordained, first staged used to invoke the disciplinary procedure against the complainant. The disciplinary hearing of the appeal were fundamentally flawed in circumstances where they afforded no due process rights to the complainant. It is therefore submitted that each and every step within the first process is fundamentally flawed and the sanctions stemming from this process are consequently flawed meaning that the use of this sanction to progress to any further stage the written warning stage of the respondents disciplinary procedure by way of any further disciplinary processes must also be flawed.
The complainant’s representative then submitted that the further investigations that took place were flawed in similar manner to that of the first process. He also submitted that as the disciplinary processes were based on a flawed investigation processes the entire process was unfair and should not stand.
In relation to the fourth process, which related to an unauthorised absence of eight days, the complainant submits that as the disciplinary hearing was conducted by the complainant’s line manager who was already conflicted as she was the accuser in the first place. The complainant further submits that the line manager was fully aware of and indeed played a significant role in the series of events which led to the disciplinary process against the complainant and, as such, could not have afforded the complainant fair hearing or due process it is submitted by the complainant at the line manager was in clear breach of the principle of nemo judex in sua causa" (no-one should be a judge in his own cause). The actions of the line manager it is suggested were subjectively and objectively biased.
The complainant was issued with a Final Written Warning at the end of the fourth process.
The complainant submits that the fifth and final process was flawed in several ways. The complainant was once again not provided with a copy of any meeting notes, nor was he provided with any information and or documentation in relation to the subject matter of the impending investigation meeting. The complainant was not informed of who was accuser was added is clear from the outline of the investigator spoke to the complainant’s supervisor and team leader, yet the complainant was not provided with any interview notes or memoranda in relation to same.
The complainant submits that the process was preordained in circumstances where the proposed allegations and scope of the investigation included and indeed were based upon finding against the complainant.
The complainant submits that at the disciplinary meeting of 9 August 2016 the complainant was not afforded any due process rights. It is further submitted that the manager conducting the meeting was clearly biased against the complainant. That manager it is alleged by the complainant saw fit to expand the scope of the disciplinary meeting to include aspects of previous disciplinary hearings which she had also conducted and completely unfounded allegations and findings against the complainant.
The complainant appealed the decision that he be dismissed. The complainant submits that the outcome of the appeal was fundamentally flawed in circumstances where the respondent failed or refused to recognise the unfair investigation and disciplinary process which had led to the complainant’s dismissal and the complete lack of due process afforded to the complainant. The decision was based on documentation which the complainant never received and justified the dismissal of the complainant on the basis that we have exhausted all internal avenues and this is the company’s final decision. The complainant submits that the respondent's continued reliance on each and every fundamentally flawed investigation and disciplinary which has been set out makes the overall decision of dismissal to be fundamentally flawed.
The complainant stated that despite his best efforts and taking a course in English he had failed to find work and had not worked at since his dismissal.
In concluding the complainant reiterated his belief that the decision to dismiss was based upon fundamentally flawed investigative and disciplinary processes and therefore should not stand. It was also argued that the lack of an interpreter put the complainant at an enormous and unfair disadvantage.
Findings and Conclusions:
In deciding on the fairness or otherwise of this dismissal a number of questions need to be answered.
In my view there were; the respondent places great emphasis on its ensuring the cleanliness of the hospital. It is beyond doubt that the area that must be kept spotlessly and absolutely clean is the Operating Theatres. A number of audits had found that the complainant was not cleaning the Operating Theatres as well as he should have been. The respondent deemed these failures to be safety critical. I agree with the witness who said that not cleaning the Operating Theatres correctly put people's lives at risk. The respondent was of the view that the safety of patients was put at risk by the complainant's continued failings and that this could not be tolerated.
The complainant was on a Final Written Warning at the time the fifth process was initiated. He must have been aware that another performance failure could well have the most serious consequences. Indeed the letter to him dated 9th of June 2016, confirming the issuing of the Final Written Waring, contained a line warning him, "If there is a further allegation relating to your conduct or performance within this time period, then we will have no option but to proceed in line with our Disciplinary Procedure up to and including dismissal."
I believe it is legitimate for the respondent to rely on a Final Written Warning that was issued in good faith, that had a basis for its imposition and which was fairly issued. In the circumstances outlined I do not believe the sanction of dismissal to be disproportionate.
An employer is bound to show not only had he substantial grounds justifying dismissal but also that he followed fair and proper procedures before dismissal. In relation to procedures a number of questions need to be answered.
(i) Did the Respondent adhere to its Disciplinary Policy and was that Policy fair?
From the evidence adduced it is my belief that there were some deviations from the Company's Disciplinary Procedures. One witness for the respondent admitted as much when she said that they did try to get independent parties to carry out investigations, indicating that they were not always successful in this regard. His line manager was both the instigator and investigator in some instances.
(ii) Was the Complainant given adequate details of the allegations so as to be in a position to adequately address them?
The complainant was made aware of the allegations against him as these were outlined to him both verbally and in writing. The shortcomings unearthed by the audits were discussed with him. However, the complainant was not given sight of all the documentation relating to his work in advance of attending investigative meetings.
(iii) Was the Complainant afforded an opportunity to defend himself and have his arguments and submissions listened to and evaluated by the respondent in relation to the threat to his employment?
The Complainant was given opportunity to answer and make submissions on the allegations made, (although the lack of some documents may have made defending himself more difficult).
Most importantly at the disciplinary hearing which took place on 9th August 2016 the complainant was given the opportunity to defend himself and his actions relating to the allegations that he had failed to carry out his cleaning duties correctly. Although no interpreter was present, at no time was a difficulty in relation to translation raised by the complainant at the hearing. The evidence of the complainant's line manager was that there were never issues in relation to language. Also in documents presented at the WRC hearing the complainant has indicated in job applications that he speaks English.
The complainant had also been made aware of his right to representation but he chose not to have a representative with him.
(iv) Was the Complainant informed of his right to appeal the decision to dismiss?
Yes he was and he did appeal the decision but the decision to dismiss was upheld.
So were the procedures used in the disciplinary process fair? There were some failings in the procedures however do those failings push the process into the category of being unfair? To answer that question one must review the procedures and decide if they live up to the principles of natural justice.
The details of any allegations or complaints are put to the employee concerned;
That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;
That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;
That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.
The employee concerned should also be made aware of the appeals process.
The principles of natural justice must be applied by the respondent in the policies and procedures it applies to the complainant's employment and dismissal. This requires that fair procedures are applied, not perfect procedures. As stated in Barrett J. in Boyle –v- An Post [2015] IEHC 589 "fairness is ever required, perfection is unattainable".
In this case it seems to me that although the procedures used were not perfect, they did adhere to the principles of natural justice as outlined above and thus were fair.
In summary I find that there were substantial grounds to justify the dismissal, the sanction of dismissal was proportionate and the procedures used in the disciplinary process were fair.
Decision:
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.
It is my view that the complainant was afforded due process and that in the circumstances the decision to dismiss was reasonable and proportionate. For these reasons I do not believe that the complainant was unfairly dismissed and therefore his claim under the Unfair Dismissals Act, 1977, fails.
Dated: 08.11.2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Disciplinary Procedures, Warnings, Process, |