ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006461
Parties:
| Complainant | Respondent |
Parties | A shopfloor employee | A retail store |
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-00008845-001 | 19/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00008845-002 | 19/12/2016 |
Date of Adjudication Hearing: 12/09/2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In particular, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed from his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 19th of December 2016) issued within six months of his dismissal, I am satisfied that I have jurisdiction to hear the within matter.
The parties opted to have this case heard by way of oral submissions only and produced detailed submissions (including legal submissions) which were gone through at length. Both parties were represented and were happy to proceed in this way. The fact of dismissal is not in dispute and the burden rests with the Respondent to show it has acted reasonably in all the circumstances.
Background:
The Complainant had worked with the Respondent company since 2010. He has remained at the one retail outlet for the duration of his employment. The Complainant’s Gross weekly income is agreed as being €389.99. It is noted that the five and a half years of employment were incident free. In April of 2016 the Complainant was accused by a co colleague (CR) of inappropriate behaviour when the Complainant it is alleged berated his colleague for not having completed a task which the Complainant had asked him to do, leaving the Complainant having to complete the task in question. The Complainant denied that there was the level of aggression which was being alleged but was nonetheless given a one year written warning.
It is worth noting that it was the Store Manager Mr.G to whom this allegation was made and it was Mr. G who conducted an investigation (consulting two other members of staff who claimed to have had similar experiences ) and it was he who had made the final decision to discipline the Complainant. The specifics of the various complaints being made against the Complainant were not in his view made clear to the complainant. Instead he believes he had to put up with a general allegation that there was a pattern of aggressive almost threatening behaviour emanating from him towards other persons in the workplace. Mr G himself stated that the complainant could get loud and animated.The Complainant vehemently denied the allegations though admitted that he knew his voice could get loud. Mr. G appeared satisfied that there was a behavioural issue and that the Complainant needed to address that in himself and in the circumstances issued a written warning. The Complainant appealed this decision as he felt no tangible investigation had been conducted i.e no Statements, no CCTV, no reason for preferring the word of CR over himself. In addition there was the obvious difficulty associated with the fact finder morphing into the decision maker where the fact finder had clearly expressed a view in the course of the process. The Appeal process was short and perfunctory resulting in a six line letter dismissing the Appeal. Nothing in the Appeal process could inspire confidence. It is therefore in my estimation understandable that the Complainant felt somewhat aggrieved at the end of this process. He had been given a serious disciplinary sanction (upheld on appeal) without having gone through a commensurate seriously conducted disciplinary process.
In any even the Complainant could do nothing about the sanction once applied save insofar as he could have brought it to the attention of the WRC by way of an Industrial Relations process.
In addition to the sanction imposed the Complainant was moved from one area to another. This was seen as a fresh start though it seems as events unfolded that the Complainant never really settled there. In particular, the Complainant was put behind the deli counter and alongside an entirely new team of people.
By July of 2016 his standard of work was being called in to question by his line Manager Mr. E. Issues of stock taking, deep cleaning and not getting his workload completed in his shift were all raised. In addition to this Mr. E alluded to other unnamed staff in the deli making complaints about the Complainant. This again was vague and was intended to persuade the Complainant of the merits of acting within the team. Mr. E stops the meeting and re-convenes it two days later (July 16th) when it seems another problem with out of date stock has once again come to his attention. Mr. E issues an official verbal warning to the Complainant. It is not clear if the verbal warning related only to the Complainant’s standard of work or whether the Complaints made by the deli colleagues also played a factor.
In essence, these meetings had the hallmarks of Disciplinary meetings without the normal processes of making the employee aware of the nature of the complaints and giving him a proper and fair opportunity to meet the case being made against him.
I am very conscious of the fact that there are detailed typed accounts of the various meetings held with the Complainant which have been opened to me but which have not been agreed by the Complainant. I have not been shown the handwritten notes of any meetings. I understand that the Complainant was never invited to agree these typed notes and was in fact never shown handwritten or typed noted in the course of his employment (including the ongoing disciplinary processes) and that these have only been made available to him as part of the process before the WRC. This is particularly important as so much emphasis has been placed on the Complainant’s alleged demeanour in these meetings which are littered with references to the Complainant’s shouting, finger pointing, being argumentative and being aggressive (eg noted of the July 30th meeting).
Two weeks later on the 30th of July 2016 another incident arose on the work floor when a co-colleague of the Complainant made a complaint that the Complainant was disrespectful and intimidatory when he tried to pass on the list of tasks being assigned to the Complainant. To be fair to the Management they dealt with the issue swiftly and brought the two employees aside to try to understand what had happened. Statements were taken from the two managers involved and this matter was ultimately brought to the attention of Mr. G. A meeting with Mr G. ensued.
On the 16th of August Mr. G conducted a meeting which resulted in the complainant being given a second verbal warning. How the Complainant was invited to this meeting is unclear though it is noted that he was told to go and get a witness half way through to have someone present for the application of the sanction referred to. In the course of the meeting Mr. G takes issue with the Complainant’s performance and attitude. He advises that named members of staff have been coming to him complaining about the Complainant’s refusal to co-operate and carry out functions expected of him. He also accuses the Complainant of wilfully thwarting the instructions of his manager Mr. E. (though where this allegation comes form is never explained or expanded upon).The typed account of the meeting demonstrates that the Complainant does become defensive as these allegations are put to him. Mr. G states that the verbal warning is given for poor attitude and poor work performance. Mr. G further warns that an improvement is needed as disciplinary sanctions up to and including dismissal will otherwise apply.
In the aftermath of this meeting the Complainant enlisted the assistance of the HR Manager who agreed she would look into some of the matters he raised and it is noted that the HR manager did talk to come of the Complainant’s colleagues in this regard. It is noted that the HR Manager never came back to the Complainant but instead ultimately appears to have made things worse for the Complainant.
Four days after the second verbal warning had issued, the Complainant was once again brought in to another meeting regarding his performance in the workplace (August 20th 2016). The discussion appears to escalate with the Complainant saying that he cannot do all that is expected of him and he does more than everyone else. This meeting is brought (per the typed notes) to an abrupt end with Mr. E describing the Complainant as being loud and aggressive. On that same day Mr. G calls the Complainant back in and in particular appears to be critical of the Complainant’s having alleged that he, Mr. G, had it in for people who had been out on strike. Clearly Mr. G feels that an allegation such as this (and which was made through the HR Manager ) goes to the heart of what he as General manager is trying to achieve in the store. Mr. G describes the Complainant’s attitude as very poor. The Complainant it seems becomes agitated and the meeting is suspended.
In and around this time Mr. E made a statement regarding the Complainant’s performance in the deli area. Particular emphasis is placed on his aggression, on his failure to heed instruction and on his loud and generally agitated manner.
On the 22nd of August 2016 the Complainant wrote to the MD of the Respondent company pleading that he has been repeatedly interviewed and harangued by management and that there was a campaign to find reason to fire him. Less than two weeks later the Complainant was in fact dismissed.
The build up to this decision started on the 31st of August when the Complainant was again called in to meet with Mr. G who detailed the Complainant’s History (as seen by management) since April of that year. Again the Complainant had his personal demeanour highlighted. He was told he was both aggressive and intimidatory to staff and management. Additional and ongoing problems with performance were referenced and a seeming unwillingness to improve the situation was noted. There is nothing to suggest that the Complainant knew that the meeting was about to be escalated into a Disciplinary meeting although it is noted that the Complainant was advised to get a witness for the second half of the meeting. Whilst there was an issue with getting the witness he wanted, the Complainant did return to the meeting to be advised that in light of section 6 of the Company handbook (regarding the treatment and respect for fellow employees, management and the employer) Mr. G felt the need to consider whether or not a breach of this code of conduct had occurred such that would attract a disciplinary sanction up to and including dismissal. In the meantime the Complainant was suspended.
On the second of September 2016 the Complainant was invited into the workplace for what was to be a final meeting. It is worth noting that this was the first meeting where the minutes of any previous meeting were read out at the meeting. The minutes of the meeting held on the 31st of August were disclosed to the complainant. These were specifically not given or shown to the Complainant. The Complainant denied the notes as read to him were a true reflection of the previous meeting. At the heart of this meeting on September 2nd, it seems to me, was an insistence that the Complainant needed to accept that he continuously displayed an aggressive manner and a refusal on the part of the Complainant to recognise this trait in himself. It was a stand –off with both Mr. G and the Complainant refusing to budge from their positions. Ultimately Mr. G had to put the proposition to the Complainant that colleagues and management were fearful for their safety around the Complainant. Mr. G terminated the employment summarily at this meeting.
As was his entitlement, the Complainant Appealed this decision but as had happened the previous April, the Appeal was dismissed in what appears to have been a perfunctory way with no effort to explain the rationale behind upholding the decision.
Summary of Complainant’s Case:
The Complainant makes the case that he has been subjected to a very unclear disciplinary process where wave upon wave of unsubstantiated complaint was made about him. He was repeatedly put into a position where he had to defend himself without preparation, support and or representation. The only time he was allowed have a witness was when a sanction was being implemented. The Complainant makes the compelling case that he was repeatedly criticised for his work and his demeanour and for his performance and for the manner of his interaction. However, he says that the precise nature of many of these allegations were never specified but were instead delivered second hand and were rolled together so that their sheer volume became an obstacle to him. Again and again he was told by the store’s General Manager that people were complaining about him and yet there are possibly only two first hand statements neither of which were ever categorically put to the Complainant. The Complainant speaks to the defective procedures adopted herein as being grounds sufficient to declare this dismissal as unfair and the case of Tom Cassidy and Shannon Castle Banquets 2000 ELR 248 was opened to me in this regard. There can be no doubt that a company with the breadth and reach of the Respondent company must have the facility to separate out the investigator from the decision taker. The Complainant makes the case that the investigator Mr. G in fact conducted no obvious investigation nor did he attempt to make known his terms of reference instead he just came at the Complainant with many alleged complaints with no attempt to clarify the issues involved as set out in the Company’s own policy. I have been asked to consider the inherent unfairness of the fact that the plethora of documents which purport to detail up to fourteen meetings and statements prepared and collected prior to the final disciplinary process and which were in the Respondent’s possession for the duration of the employment yet never shown to him. These only came into the hands of the Respondent’s representative in advance of the WRC hearing. I have been asked to consider the unfairness of having no representation or support in the course of many of these meetings. When invited to get a witness the Complainant had to get the first person available though he suggested he wanted someone else. I note that the Complainant has generally shied away from commenting on his demeanour in the various meetings held, though in his letter to the MD he noted that Management were “attacking” him with any aggression and abuse being on the part of management.
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Summary of Respondent’s Case:
The Respondent has asked that I focus on the Complainant’s complete inability to take any blame or acknowledge any portion of blame for his behaviour. It was this inability to meet his Employer half way which I am told ultimately lead to the Complainant having to be dismissed. The Respondent acknowledges that whilst the view is subjective, the subjective view is held by an overwhelming number of the Complainant’s colleagues. I have been asked to look at the totality of the notes of the meetings to get a clear image of how this Employee presented. An impasse was reached and the company had to take a decision based primarily it seems on the potential threat to staff that the intimidatory behaviour could escalate into something physical. This is not an unreasonable stand-alone proposition if I am to believe that the threat was a real one. I accept that any employee should be bound by a duty to ensure the safety of it’s employees. |
Findings and Conclusions:
Regarding the issue of aggression. It is difficult for me to assess what is an entirely subjective assessment. On the one hand I have a number of managers and staff stating (albeit primarily only through Mr. G) that the Complainant has aggressive tendencies if issues arise. The Complainant refutes this entirely though has accepted that he could get loud. There is also a temptation to assume that if the Complainant was showing heightened animation in the course of this series of ongoing (back to back) meetings, then this might have been as a result of his being criticised, chastised and the overall accusatory tone taken. I would say that it is interesting to note that none of the independent witnesses (few in number as there were) was asked to make a statement about how the Complainant presented at these meetings. The typed notes presented to me are entirely one sided and are not agreed. Again, it seems to me that the process of conducting a meeting, taking notes, reading back through the notes taken and having them signed off could have avoided this conflict of evidence. I accept that if I look at the totality of the paperwork, the notes of the meetings and the few statements taken I can see a picture emerging that throws the Complainant in a very bad light and it is this very fact that makes me pause and wonder about balance and fairness. Did the Complainant have no friend in the workplace? Was there no colleague willing to put in a good word? All emphasis seems to have been on negative (sometimes nebulous) feedback. It may well be that there was no good word to be said about the Complainant in the workplace but I do have difficulty in being given Mr. G’s version of events and not the original version. On balance I find that the Complainant has been treated unfairly. Fair procedures have not been applied. This is not a situation where reference can be made to procedural deficits such that do not imperil the entitlement to a fair hearing. And in this regard I am mindful of the legal argument made in support of Laffoy J’s findings in the case of Shortt v Royal Liver Assurance . The Complainant’s position was terminated without Notice which would suggest an issue of Gross Misconduct. The Subjective opinion that the Complainant might harm a fellow colleague is in fact not backed up in any independent way. The entirety of the Disciplinary process has been investigated, triggered and concluded by one individual who has attempted to create an impression of the Employee which has become so exaggerated as to no longer be believable. The Complainant was not afforded a right of representation a right to a fair hearing and a right to an Appeal. This process has been flawed from the start. The Complainant’s claims under the Unfair Dismissals Acts succeeds. Furthermore, in circumstances where the move to summarily dismiss was not justified the Complainant is entitled in his claim for Minimum Notice. |
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. The Complainant gave brief evidence regarding his losses and I award him €8,500.00.
The Complainant is entitled to Minimum Notice based on his service commencing on the 21st of June 2011 and terminating on the 2nd of September 2016. The Gross weekly wage is €389.00.
Dated: 23/10/17
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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