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-00009039-001

12/01/2017

The claimant submitted that she   was employed as a Shift Supervisor with the respondent from the 17^th.Feb.   2016 to the 18^th.November 2016 when she claims she was unfairly   dismissed for having made a protected disclosure.

It was submitted that the   claimant had concerns regarding monies held in the safe and ATM machine and   had conveyed those concerns to Senior Manager Mr.B. She had also advised him   that the stocktake figures for June 2016   had been falsified on the instructions of the local store manager.The   store manager left his employment the following day. The claimant submitted   that when she commenced employment on a 6 month contract she was advised that her probationary   period was for 6 months following which she would be issued a permanent   contract. She commenced in house asst. manager training in April 2016 and her   hours were increased to 30hrs. per week.No issues were raised in relation to   her performance review on the 27^th.April.The claimant set out a   chronology of her exchanges with Mr.B when she reported the store managers   improper activities on the 29^th.July 2016.The store manager   resigned and the claimant and Asst. manager managed the store until the 8^th.August.2017   pending the appointment of a replacement manager.The claimant fell at work on   the 7^th.August and was on certified sick leave until the 3^rd.October2016.

At the company’s request the   claimant returned to work under the new manager and was advised that her role   had changed and she was no longer a shift supervisor /trainee manager. She   was advised that she was now a cashier as the new manager did not use shift   supervisors. She was denied access to the back office and all money management   functions were removed from her. The claimant found the atmosphere   uncomfortable and felt under suspicion even through the former manager had   taken entire responsibility for the discrepancies that had arisen. The   claimant completed a review form on the 12^thNov. and was advised by the manager on the 16^th.Nov.   that she would not be getting a permanent contract.When she challenged the   decision , she was informed that the decision was based on her ability to   work with others.It was submitted that the issue of working with others was   never raised during the claimant’s employment / she had scored 6/10 in both   of her reviews and scored higher in her second review.She was   acceptable/above average in all categories.

It was submitted that the   claimant’s contract was not renewed because she had made a protected   disclosure in accordance with the Act; she had highlighted a relevant wrongdoing   .The respondent had failed to make it clear that penalisation for having made   such a disclosure would not be tolerated.The claimant was demoted on her   return to work- the respondent had no whistleblowing policy in their   handbook.It was submitted that the claimants performance reviews were   positive ; her 6 month probationary period had passed .It was advanced that   the claimant was entitled to the protection of Unfair Dismissals legislation   by virtue of having made a protected   disclosure and did not require 1 year’s service with the respondent.The   claimant was never made aware of any complaints by other staff members about   her behaviour at work – if there had been any concern about her performance   the respondent should have dealt with same under the company procedures and   had not done so. No meeting had taken place into any performance issues.

The claimant set out a   chronology of her exchanges with senior managers on her disclosures   concerning the former manager. In a post hearing submission the claimant set   out evidence of her endeavours to mitigate her loss – the claimant indicated   that any emails she had been perusing   on the office computer related solely to her and the matter of her return to   work after her sick leave when she had incurred a broken coccyx.

The respondent denied the   complaint and submitted that the claimant’s initial performance review was   not favourable.

It was submitted that the new   manager was unaware of the   circumstances surrounding the previous manager’s departure.It was submitted   that on the claimant’s return to work , the new manager had a meeting with   her about health & safety issues – he had restricted access to the office   by staff to prevent improper use of the computer.It was submitted that he had   observed the claimant scrolling through private emails and this was not   permitted.

The new manager completed a   performance review with the claimant in Nov.2016 which it was submitted was   not favourable to the claimant – it was submitted that he was not happy with   her suitability to the role. It was submitted that the new manager was not on   site when the claimant made her   disclosures , that he was unaware of any such disclosures or indeed the reason for the departure of   the previous incumbent , that he was given no instructions to dismiss the   claimant and that he was fully   entitled to dismiss her if unsuitable to the role.

The respondent invoked the   provisions of Dan Philpott v Marymount University Hospital and Hospice in   support of their contention that the claimant had failed to demonstrate any   evidence or material link between the disclosures and the claimants   dismissal. It was submitted that the claimant had failed to demonstrate any   evidence or to show any material link   at all between the disclosures and her dismissal for the purposes of the   Protected Disclosures Act, 2014 .It was submitted that “ Akin to the position   of Marymount University Hospital , the respondent terminated the employment   of the complainant due to her unsatisfactory professional performance”.

In his direct evidence at the   hearing the manager asserted that the claimant did not know what she was   doing when it came to stock taking and contended that he had to tell the   claimant how to do cash. Notwithstanding the submission of the respondent’s   representatives, he accepted that he was aware of the circumstances   surrounding the departure of the previous manager .He stated that the   claimant did not know anything and that there was friction between the   claimant and other staff.He confirmed that no staff member had taken a   grievance against the claimant and accepted that he had engaged with senior   management about the claimant’s future approx.. 3 weeks before the claimant   was let go.He stated that the contract   was terminated “ for my own reasons and had nothing to do with   anything else”.

I have reviewed the evidence presented at the hearing and   noted the respondent’s clarification that basic grade staff whether acting up   or training as assistant manager all earn the national minimum wage.

I note there is no dispute between the parties with   respect to the claimant having made a protected disclosure within the meaning   of the Act when she reported on the previous manager.

I have examined in detail the 2   appraisals of the claimant and noted that in the first appraisal the claimant   scored “good” with 57 points and above   average in 3 different criteria – hygiene, attitude and job performance /customer service.In the   second appraisal which was conducted 4 days prior the termination of the claimant’s employment ,   the claimant scored above average in 6   different criteria – job knowledge , dependability, hygiene, attitudes , job   performance/customer service and time   keeping and attendance.She scored a total of 61 points – “good score” and   scored an acceptable 6 for ability to work with others.The manager was unable   to advance any compelling evidence to   explain the contradictions between his assertions of performance   deficits and inability to work with others   in his evidence to the hearing and the positive appraisal outcome   which was undertaken 4 days before the claimant’s employment was   terminated.In addition I am taking account of the manager’s confirmation at   the hearing that no other staff   member expressed a grievance in   relation to the claimant.In light of the foregoing , I find on the balance of   probabilities that the termination of the claimant’s employment was wholly or   mainly related to the protected disclosures made by her about the previous   manager .Accordingly , I am upholding the complaint and require the   respondent to pay the claimant €7,020   compensation within 42 days of the date of this decision.