ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007702

Parties:

Complaint:

Date of Adjudication Hearing: 10/08/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints 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.

The Complainant was employed from 7^th December 2015 until the employment was terminated with payment in lieu of notice by the Respondent on 1^st December 2016. The Complainant was paid €35,000 per annum and she worked 20 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment and was also provided with the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 21^st March 2017 alleging she had been unfairly dismissed. The fact of dismissal was not in dispute.

PRELIMINARY ISSUE. Date of Dismissal.

The Respondent raised a preliminary issue and asserted that the Complainant did not have 12 months continuous service with the Respondent and therefore was not entitled to take a complaint for unfair dismissal. Section 1(1) of the Act defines “date of dismissal” as follows –(b)where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment………the date on which notice would have expired, if it had been given on the date of termination and had been expressed to expire on the later of the following dates – (a)the earliest date that would be in compliance with the provisions of the contract of employment. The Contract of Employment issued to the Complainant provides at Section 17.1 as follows – This contract may be terminated by either party giving to the other a minimum of 1 months’ notice by the employer…..

I find that the Complainant has 12 months service as her employment terminated on 31^st December 2017 in compliance with Section 1(1) of the Act.

SUMMARY OF RESPPONDENT’S POSITION.

The Complainant commenced employment with the Respondent on 7^th December 2015. She worked as the Key Account Executive. She was advised of an important tender which if successful would generate more business for the Company. This tender was to be submitted no later than 15.00 on 28^th November 2016. The Respondent alleged that the Complainant missed this deadline and the Respondent was unable to compete for this tender. It was the Complainant’s responsibility that she managed her time effectively and prioritised her work in accordance with the deadline. On 29^th November 2016 the Complainant issued an apology to the named Sales Director and the Senior Accounts Manager, named. The Sales Director requested a meeting with the Complainant on 30^th November 2016. She was also requested to meet with the named HR Manager on the same day. At this meeting with the HR Manager she was asked to explain missing the deadline. She was then invited to attend a Disciplinary Meeting in an undated letter on 1^st December 2016 at 4pm in relation to gross m misconduct. She was informed that she could be accompanied by a fellow employee. The Disciplinary Hearing was also to be conducted by the HR Manager and she was informed she could be dismissed without notice.

The Respondent asserted that the Complainant met with the HR Manager, unaccompanied and admitted the issue was 100% her fault. Further to this meeting the Complainant was issued with a letter of dismissal on 1^st December 2016 with a right of appeal to a named employee within five days. She was dismissed for breaching her terms and conditions of employment with specific reference to Clause 17.2.3.

The Complainant appealed the decision to dismiss outlining the reasons for her appeal. The Appeal Hearing took place on 9^th December 2016. The outcome of the appeal was issued on 3^rd January 2017 and upheld the dismissal while also noting that certain aspects of the process could have been handled differently.

SUMMARY OF COMPLAINNAT’S POSITION.

The Complainant was summarily dismissed on 1^st December 2016 for gross m misconduct arising out of a single incident of a missed deadline. On 21^st November 2016 the Complainant and the Sales Team received an email from the named CEO in relation to a new sales competition and that this was to be given priority status and other work completed around this or outside working hours. The Complainant was informed by the Sales Director on 22^nd November 2016 concerning another named tender which she was to work on with two other named employees. The Complainant commenced work on this tender on 23^rd November 2016 and the tender was completed by the Complainant and the other team members at 12.30 on 28^th November 2016. The Sales Director requested the addition of some more slides and this was completed by the Sales Director and the Complainant at 2.45pm, 15 minutes ahead of the 3pm deadline. However a computer crashed in the IT Department resulting in the deadline being missed by 10 seconds.

The Complainant emailed the Sales Director on 29^th November apologising for the error. He requested her to attend a meeting with the Sales Director and another named employee at 3pm on 30^th November 2016. At 11am on 30^th November 2016 she was called to a meeting with the Sales Director to review her working arrangements and her reporting arrangement which was to be changed. At 1.34 on 30^th November 2016 she received an email from the HR Manager asking her to attend a meeting at 2.30pm the same day with the HR Department. She was not informed of the purpose of this meeting but did attend. She was asked to explain the missed deadline and accepted some responsibility but she was not the only one involved in this tender. Following this meeting she received a phone call from the HR Department informing her that the meeting she had attended at 2.30pm had been to discuss her gross misconduct and she was given a letter entitled “invitation to Disciplinary Hearing” which advised her that a Disciplinary Hearing would take place on 1^st December 2016 at 4pm. At 3.59pm the Complainant sent an email – provided – to the HR Manager, the CEO and the Sales Director expressing her horror at being accused of gross misconduct. There was no response to her email raising a number of issues with the exception of an email from the CEO to the HR Manager stating as follows – “Jesus – did you really have to send her that”.

The Complainant attended work on 1^st December 2016 as usual at 10am where she was met by the HR Manager, escorted to his office and advised that her employment was being terminated with immediate effect. She was asked to remove her identity tag and she was escorted from the premises. The Disciplinary Hearing scheduled for 4pm on 1^st December 2016 never took place. The Complainant was subsequently sent a letter dated 1^st December 2016 headed “Termination of Employment” and referred to a Disciplinary Hearing which took place on 1^st December 2016. The Complainant was informed of her right of appeal which she did and this appeal was heard on 9^th December 2016 and the decision to dismiss was upheld by letter dated 3^rd January 2017. This letter did acknowledge that some processes could have been handled better.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence and Witten submissions from both Parties I find as follows –

-Both Parties confirmed at the Hearing that the Complainant had not been formally invited to an Investigation Meeting nor was she informed in advance of the purpose of the meeting with the HR Manager held on 30^th November 2016. There were no notes/minutes of this meeting.

-Both Parties confirmed that the HR Manager, named, sent an email to the CEO, named and to the person who was later named as the person to conduct the appeal. This email was sent at 16.42 and states as follows; Hi We are obliged legally to give (the Complainant) 24 hrs notice for a formal disciplinary meeting. In the letter we outlined that the meeting is in relation to an incident of gross misconduct which is what it is and as per her contract: “Are guilty of misconduct or wilful neglect in the discharge of your duties or the performance of your powers”. I am concerned at your response below as we had discussed immediate exit in line with employment law – do we need to have another chat about the outcome of her meeting before I speak with her tomorrow. Thus it is clear from this email that the CEO, the HR Manager and the Appeals Officer appointed had a prior discussion and made a decision concerning an immediate exit.

Both Parties confirmed that the Complainant was invited to attend a Disciplinary Hearing on 1^st December 2016 at 4pm with the HR Manager. Both Parties confirmed that this scheduled Disciplinary Hearing did not in fact take place and the Complainant was escorted off the Premises by the HR Manager at 10am on the morning of 1^st December 2016 even though the Manager had arranged a Disciplinary Hearing at 4pm on the same day – 1^st December 2016.

The Complainant was issued with a dismissal letter dated 1^st December 2016 which refers to a Disciplinary Hearing which allegedly took place on 1^st December 2016 but in fact never took place. The Complainant was afforded a right of appeal to a named Employee being the same employee who was sent the email from the CEO on 30^th November 2016 – referenced above- and who according to this email was party to a prior decision to have an immediate exit in line with employment law.

Both Parties confirmed at the Hearing that the deadline for the submission of the tender was 3pm and that the tender application had been completed by 2.45 pm. Both Parties confirmed that the IT System crashed as the tender was being submitted.

Both Parties confirmed there were no notes/minutes of any meetings which took place.

Section 6(7)(b) of the Act provides that an Adjudication Officer may have regard –(b) to the extent (if any) of the compliance or failure by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7(2) of this Act.

Section 7(2) of the Act provides as follows: the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of Section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.

1. ^th May 2000.

The Complainant provided evidence post the Hearing of her efforts to mitigate her loss in compliance with Section 7(2)(c) of the Act which puts an onus on the employee to mitigate the loss arising from the dismissal. The Complainant also provided evidence that she has been successful in being accepted to do a Professional Master of Education (PME) in Post Primary Education from September 2017.

Decision:

Unfair Dismissals Act, 1977 – 2015 CA-00010323-002

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.

In accordance with Section 8 (1)(c ) of the Act and in view of my findings above I declare this complaint is well founded. The Respondent has failed to observe fair procedures and apply natural justice to the dismissal of the Complainant. I direct the Respondent to pay the Complainant compensation of €30,000.00 (thirty thousand euro) with 42 days of the date of this Decision.

Minimum Notice and Terms of Employment Act, 1973 CA-000103423-001

This complaint was withdrawn at the Hearing as the Complainant had been paid one week’s pay in lieu of notice.

Terms of Employment (Information) Act, 1994 – 2015 CA-00010323-003

This complaint was withdrawn at the Hearing as the Complainant had been provided with a written statement of her Terms and Conditions of Employment

Dated:   25^th October 2017

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