ADJ-00005870

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005870

Parties:

Complaint(s):

Date of Adjudication Hearing: 04/12/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Preliminary Issue:

The respondent respectfully submits that the claimant does not have the requisite one year's continuous service and as such she does not have locus standi to bring a claim under the Unfair Dismissals Act 1977 - 2015.

The respondent stated that the claimant commenced employment with them on 12 October 2015 and not 20 April 2015 as stated on the claimant’s complaint form.

The respondent submits that the claimant was employed by a third party, Agency, as an agency worker in the time preceding her direct employment by the respondent as stated on the claimant’s contract of employment with Agency dated September 7 2015.

The claimant disputed the respondents position and submitted that she was interviewed by the Respondent’s HR for the position and always she was under the direct control of the respondent

Decision:

Having reviewed the evidence as presented at the hearing, I have made the following decision.

The respondent states that the claimant was employed by Agency as an agency worker from the April 20 2015 until she was directly employed by the respondent on October 12 2015. It is noted that the claimants contract of employment with Agency is dated September 7 2015 nearly a full 5 months after her placement with the respondent began. The contract of employment itself is fairly detailed as to duties, responsibilities, procedures and payment etc.

I find that the claimant as interviewed for the position by the respondents HR Manager

However, prior to the date on the contract of employment of Agency, the claimant had to receive instruction and direction for a period of nearly 5 months and on the balance of probabilities, this instruction and direction would have been by the respondent and as such the respondent would have demonstrated enough control over the claimant to effectively create an unwritten contract of employment. I find that the claimant was bound by the respondent’s rules in so far that she had to get approval when she wished to take holidays. I find that the agency was the payroll master.

Decision, 

I will allow the claimant to proceed with the claim for Unfair Dismissals. 

Background:

The claimant was employed by the respondent as a personal assistant to the plant manager by the respondent. As part of her role the claimant was responsible for making travel arrangements for the plant manager and other senior leaders in the respondent’s business.

She was paid €3833.33 gross per month working a 39-hour week.

In or around June 2016, the claimant had arranged for her fiancé's new taxi business to undertake driving duties for employees of the respondent. This new taxi service was not an approved vendor in accordance with the respondent’s usual procedures. This was in direct contradiction to the respondents Conflicts of Interest Policy. The claimant had attended training on the respondents Code of Conduct on April 20 2016 which dealt with the Conflicts of Interest Policy.

In July 2016, while approving expenses, the plant manager for the respondent noticed 2 payments made to an unauthorised taxi vendor who was known to be the claimant’s fiancé. The claimant was notified by letter dated July 6 2016 that she would be suspended on full pay pending the outcome of an investigation into the alleged breaches of the respondent's corporate policies, codes of practice and ethical business practices.

The outcome of the Investigation was a recommendation to proceed to a Disciplinary hearing.

A Disciplinary hearing took place on July 18 2016, the result of which was conveyed to the claimant by letter dated July 21 2016 and stated that the claimant’s contract of employment was to be terminated. The claimant appealed this decision and the appeal hearing was heard on July 28 2016, the result of which was notified to the claimant by letter dated August 2 2016 and upheld the decision to dismiss the claimant with effect from Jul 21 2016.

The respondent submitted that by the claimant’s actions she has broken the trust and confidence placed in her by the respondent.

The claimant for her part stated that following a conversation with another employee she believed she did not need to follow normal procedures when procuring a new vendor, it was also stated, by both parties, that the new taxi vendor was cheaper.

The claimant further submitted that her direct line manager told her she was dismissed and to leave the premises immediately.

Findings:

When dealing with matters of dismissal it is of the utmost importance that the process used to dismiss an employee complies with the interest of natural justice and fairness.

I find that the relationship between the respondent and claimant is damaged beyond repair.

I find that the claimant was aware of the procedures required to engage a new vendor and failed to follow them.

I find that the claimant had the opportunity to disclose the relationship between the new taxi vendor and herself and failed to do so despite her training.

I find the claimants argument for non-disclosure of the relationship to be very weak, given the fact she was aware and recently trained in the respondent’s code of conduct policy.

I find that the claimant should have relied on her training and given her position within the company this should have been foremost on her mind when she decided to engage her fiancé's taxi service as a vendor.

I find that the direct evidence from the claimant that she was dismissed by her line Manager compelling, however it was rejected by the persons at the hearing but not by the Manager involved who did not attend either hearing.

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.

I find the dismissal Unfair, however I find that the claimant did contribute substantially to her own dismissal.

I award the claimant €6000.0 in compensation 

Dated:   21 February 2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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