ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00003780
Parties:
| Complainant | Respondent |
Anonymised Parties | An Advisor | Business Process Outsourcer |
Representatives | Noel Murphy, IWU Official . | Deirdre Crowley, Crowley Solicitors. |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00004501-001 | 17/05/2016 |
Date of Adjudication Hearing: 6/04/2017 and 07/09/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance 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: Preliminary Issue:
The Complainant worked as A Back-Office Advisor with the Respondent from 28 July 2014 to 6 January,2016, when her employment was terminated. She received 4 weeks’ pay in lieu of notice. The Union lodged a complaint under the Unfair Dismissals Act 1977-2007 on 17 May 2016. On 6 April, 2017, both parties attended a hearing in the case. Neither Party had submitted a written statement in advance of the Hearing. The Respondent sought to make a Preliminary Application under Section 42(1) of The Workplace Relations Act, 2015 that the case be dismissed on frivolous and vexatious grounds. The Respondent submitted that the Complainant had omitted to avail of the opportunity given to appeal the decision taken to dismiss her. The Respondent outlined the Oxford English Dictionary definition of vexatious and applied it to the circumstances of the case The Respondent relied on case law in EAT: Pungor V MBCC Foods (Ireland) ltd UD584/2015 /PW 205/2015 Conway V Ulster Bank UD474/1981 and submitted that the Complainants omission to exhaust internal procedures prior to advancing her case before the WRC was a vexatious action. The Union, on behalf of the complainant requested that the case proceed. The Union submitted that as the Complainant had been denied a Trade Union representative during her Dismissal, she had in fact lost confidence in the internal procedures. This was not a Malicious or Vexatious act on behalf of the Complainant. The Colleagues who had accompanied her to meetings were not familiar with the formalities of the Appeal System. The Respondent responded by stating that the Complainant was given every right to bring a person of her choosing to the Disciplinary meeting, where her right of appeal was clearly outlined. The Parties had been engaged in significantly lengthy procedures, where the complainant was permitted a representative throughout. SI 146/2000 applied. The Union was not recognised at the Respondent company. I asked the Respondent to address the absence of the required written statement from July 1, 2016.? I was informed that the Company had gone through a change in ownership and personnel and the submission had been delayed accordingly. I took a brief recess to consider both positions and I reconvened the parties. I expressed my intention, in the interests of fair procedures to proceed to hear the entire case and I was not going to jump to any conclusions on the topic of representation. This was stated as being without prejudice to either party. I sought that both parties would submit and exchange submissions in advance of the next hearing day. The Submissions were received and exchanged as requested. |
Summary of Respondent’s Case:
The Respondent disputed and rejected the claim for Unfair Dismissal. The Respondent outlined that the Complainant had been hired as a Back-Office Advisor on 28 July, 2014.The Complainant had received information on the employment policies regarding absence and punctuality. The Respondent accepted that the Complainant worked a 35.5 hr week The Respondent outlined that the Complainant had had 55 recorded contacts, which incorporated 24 Meetings with the company during her employment, which ended on 6 January with four weeks’ pay in lieu of notice. The Respondent described a graduated contact pattern, which began following a period of absence on 9 September 2014.Over the course of the following month, the Complainant was late for work on 6 occasions. Initially. the Company adopted a Policy familiarisation process in response to the problems of Illness Time Keeping Deficiencies in Performance. A Performance Improvement Plan to address the periods of absence was commenced on 17 December ,2014. The Complainants probation period was extended in January 2015 to address performance issues. The Respondent held monthly review meetings, where the complainant sigh error rates were discussed. In March, 2015, the Respondents Human Resource Dept. recommended that the complainant receive informal Disciplinary Counselling. A further period of absence followed, and the complainant was issued with a verbal warning on May 5, 2015.The Complainant committed to doing her best to ensure that she had no further absences. the Complainant appealed the verbal warning, which was overturned on May 15, 2015.The complainant had further periods of absence and lateness which were noted and kept under review by her Team Leader. The Respondent was also concerned at the persistent variance in the Complainants error rate. The Company adopted a company rate of 9%, yet the Complainant had a 13-14% rate. A Formal Investigative Hearing occurred on 24 July ,2015 into the Complainants persistent absenteeism which culminated in the application of a verbal warning. Concerns were also raised when the complainant was found to have exceeded her permitted “allocated time away from her desk”. Following a further Investigative Hearing, where the Complainant submitted medical evidence of a medical complaint, she was accommodated with an “away from desk time of 15-20 mins “rather than the norm of 7-10 minutes. The Respondent submitted that the Monthly Performance Improvements reviews continued with the Complainant. the Respondent commenced a Coaching Process with the complainant in October 2015 to address: Targeted reduction in “invalid deficiencies” to 20% from 31%. Episodes of Lateness. On 22 October, 2015, the Complainant submitted a complaint against her then Line Manager, Mr LM2. A Formal Investigation followed, where the Complainant declined an Invitation to sit down with Mr LM2 to clear the air. No further action was taken and the matter was closed. The Respondent continued to have concerns about the Complainants pattern of: Absence without leave on 19 October Persistent Lateness Excessive Time away from Desk Poor Quality of Work Output Following an Investigative Hearing on 6 November, the Complainant was issued with a final written warning of one year duration. This was appealed by the Complainant and was not disturbed. The Respondent varied the performance review process from monthly to weekly to address the problems with the complainant’s performance. The Complainant did not meet the targets in all four areas of concern. The Complainant was absent without leave on 29 December ,2015 which prompted a final disciplinary investigation meeting on 6 January, 2016. At this meeting, the Complainant was facilitated with a work colleague as support. She had not sought access to a Professional representative. The Complainant confirmed that the coaching sessions had not benefitted her performance. On foot of this meeting and because of the Complainants Underperformance in all areas, the Complainant was dismissed with four weeks’ pay in lieu of notice. The Complainant was offered the option of internal appeal but did not pursue this. The Respondent submitted that the Complainant had not sought to bring a Union Rep to the January meeting. The Respondent does not recognise the Union for negotiating purposes, however, the company adopts a practice whereby if a request is made for Individual representation, it is acceded to. The Respondent relied on Case Law in Valukevica V Donnelly Fruit and Veg Central UD 139/2014. The Respondent submitted that the complainant in the case had declined to engage with the internal processes of her employer to their maximum extent before initiating her claim. The Respondent submitted that this was an analogous set of circumstances with the instant case and sought that the claim should fall for disregarding the clear offer of an Appeal Post Dismissal. The Respondent went on to submit that the complainant had a working knowledge of the Appeals Mechanism in the case of Disciplinary sanctions and had processed two appeals whilst employed by the Respondent, one of which had succeeded in May 2015. The Respondent sought the application of Section 6(4) of the Unfair Dismissals Act ,1977. The Respondent argued that the Company had adopted fair and broad minded performance management processes throughout the complainant’s employment to address the significant issues of: 1.the Complainants capability and competence 2 Impunctuality 3 High Absence Rate 4.Low productivity. Coaching had been introduced in the latter stages of employment without success, where the Complainant was afforded the opportunity to improve. The decision to dismiss the complainant resulted wholly or mainly from deficiencies in her capability, competence and attendance. O Brien V Dunne’s Stores UD /16/69 Labour Court, April 2017. O Gorman V App Rathcoole Motors ltd UD 957/2014 Lynch V Ard Service ltd UD 695/2014 “regrettably, given the prior history leading up to the dismissal of the claimant on the 20 January, 2014, It is the Tribunals view that it was not unreasonable of the respondent to apply the ultimate sanction of dismissal on that occasion having already applied progressive sanctions and having endeavoured, as it had, to assist the claimant in remedying the situation” Witnesses: Ms HR1 Ms HR 1 had worked with the Respondent for 6.5 years. She heard the appeal of the verbal warning. Ms HR 1 gave evidence that she held a De Novo Hearing, which lasted 45 minutes, empathised with the complainant’s family circumstances and gave her a second chance in her decision to overturn the verbal warning. She confirmed during cross examination that Representation is permitted when someone asks. Mr TL1 Mr TL had been a Team Leader for 11 years. he was the complainants line manager and became concerned at her lateness and Absence rates, which he queried with the human Resource Dept. The Complainant was placed on a performance Improvement Plan in response to her 3rd period of lateness, which she passed. The Company were not intolerant of lateness. They had a practice where the employee was met with as soon as possible after the event to aim for improvements. She was unsuccessful in her second performance improvement plan. The Complainant passed her probation. Mr TL gave evidence that application for part time working could be addressed at meetings, during a walk up or by sending an email. Mr TL did not believe that the complainant raised the topic of part time work application. He would ordinarily jot down such an application and he had checked the relevant documentation but could find a record of formal application. He did recall a verbal discussion on the topic. There was provision for swops or to move accounts. He submitted that being under disciplinary sanction was not a barrier to accessing part time work. He was not aware that the change in hours had an ongoing detrimental effect on the complainant. He submitted that he may have handled one application for part time work post a return from maternity leave. He submitted that all sick leave was unpaid. He acknowledged that the Complainant did come to work, while ill to try to achieve the pre-determined targets. The Complainants hours did not change in March 2015. There was a back log in shift patterns and the shift pattern changed. This was normal to maintain Office flexibility and a months’ notice was given prior to shift change. The complainant received records of her daily scores and there was a clear variance in the standard expected in her case. He completed her monthly assessments. During cross examination, Mr TL confirmed the presence of the email exchange between the parties on access to part time work. He confirmed that an Observer was permitted to attend at meetings to observe and take notes. He Complainant had not asked to move accounts during his management period. Mr OM (Operations manager) Mr Om had worked at the level of Operations Manager for 9 years. He had 150 employees in his division. He worked at the head of the chain between Team Leader and Human Resources. He had had very little involvement in the case prior to the circumstances surrounding dismissal. He was not aware that the complainant’s medical problems were attributed by her as being linked to her full-time status. He knew that she had a daughter, who was ill. The earliest starting time in the complainant’s section was 7.30 am as the Systems Dept. isn’t open before that. He confirmed that there was some flexibility between accounts, if a staff member has a difficulty he/she can approach him to “reach out to other Depts.”. He did not see the issue of part time work for the complainant as being a burning issue. She had not tried to swop. Mr OM prepared the way for the Disciplinary Meeting on 6 January. the Complainant was on sick leave and was offered representation. He was deputising for Ms TL 3, who was ill. She did not request a Union Rep. The Respondent facilitates Union Representation on Individual matters and the Complainants Representative had been at other meetings. The Complainants then line manager, Ms TL3 was ill and not available to hold the meeting. He found that the complainant was disconnected from the company .He understood that she had declined part time work as a request had not been submitted .He based his decision to terminate the complainants employment on: 1 It was the very last resort 2 Coaching had not elicited the sought-after improvement and the complainant sought to relocate Departments on foot of that not working out. 3 Lateness/Absences 4 quality of her work 5 Her reference to “banging through the product without checking “ He formed the view that the complainant did not fully understand the nature of the work required of her. He had found it to be “not an easy decision”. He had only dismissed two employees in his 9 years of Operational Management. He said that it was the hardest option but the company had tried to work things out. He stated that it was the hardest decision that he had to take. He did not hear the complainant say that she had no confidence in the appeal process. During cross examination, Mr OM stated that allocation of set hours is looked at on a “case by case” basis. He confirmed that the complainant had asked for part time work in April 2015.In relation to the role of the complainant’s representative, he confirmed that he disagreed with her statements on the breakdown in communication but he had taken them into account. He confirmed that he did not know whether anyone had ever refused to appeal a decision. Mr OM confirmed that only Human Resources and Operational Management held the power to dismiss at the company. He confirmed that he had considered representations made on behalf of the complainant. He had outlined the mechanism for appeal. Ms HR 2 Director of Human Resources (16 September 2015) Ms Hr 2 gave evidence that the respondent workforce fluctuated between 1900 and 1950 employees of which 10% are part time. Hr adopts an advisory and support role. She was aware of the work that had gone into the complainants file, but she had commenced work at the company on 16 September ,2015. She confirmed that Ms TL3 had initiated the final disciplinary investigation. Mr OM had access to HR advice. Ms Hr 2 confirmed that a Disciplinary sanction was not an impediment to relocating in the company.” We have moved people with Disciplinary records “. There was no set process for swops, but the Team Leader encouraged it if it needed to happened. In referring to the company records on shifts worked by the complainant, Ms HR2 confirmed that there were variable shifts and she never had one fixed shift. Ms HR 2 submitted that in her opinion, had the complainant applied for part time or set shifts she would have stood a good chance. Ms HR 2 confirmed that she had not had direct contact with the complainant. In relation to Union Representation, she submitted that “If we are requested to have a Trade Union representative, we say yes “In addition, the company would accept submissions. The Company is open to parents, siblings, solicitors in representative roles, however, the practice is normally a work colleague. Ms HR2 did not accept that the Company was at fault in respect of the complainants search for new work prior to her dismissal. Ms HR 2 contended that the company had shown the complainant a lot of compassion and understanding and in the end, she was reluctant to meet the company half way. During cross examination, Ms HR 2 confirmed that the Company Policy did not specifically advise on having a Trade Union Rep present at Disciplinary meetings, but will be facilitated if requested. She confirmed that part time work was looked at in November 2015.It is not part of the recruitment process. The Respondents Solicitor conclude the case: The Complainant had been employed on a full-time basis, had received considerable lea way in the accommodation of her overall performance during her work for the respondent. She had not made a formal application for part time work or indeed parental leave. Had she applied, she would have been facilitated. There were Policies governing both at the company. The Respondent submitted that the decision to dismiss the complainant was reasonable and did not constitute a contravention of the Unfair Dismissals Acts. |
Summary of Complainant’s Case:
The Union presented an Outline of the case on behalf of the complainant. The Complainant was employed by the Respondent from 27 July, 2014 to 6 January,2016 when she was dismissed, having received four weeks’ pay in lieu of notice. The Complainant commenced on Shift 1,comprising of 7 am start to 4pm finish or 7.am start and 4.30 pm finish , with an early finish on Friday .The Complainant was satisfied with that pattern as she had a pre-school going child .The hours of work were changed in March,2015 to a shift 2 pattern involving more varied start times and varied and later finish times .The Complainant found that the new hours did not suit her family circumstances and requested shorter working hours from her Line Manager . The Complainants Line Manager understood her situation, but the Operations Manager opposed the shorter working hours. The Complainant understood that this was attributed to a disciplinary sanction for lateness. In May 2015, the Complainant received a verbal warning for being on sick leave. The Complainant had an awareness of her problematic sick leave and made every effort to attend work. However, her daughter was also unwell now. In November, 2015, the Complainant asked her then Supervisor, Ms A for a more suitable shift pattern to enable her to tie down a lift to and from work. This was not permitted. On November 6, 2015, the Complainant was invited to attend an investigative meeting to discuss her overall performance .The Complainant endeavoured to give reasons for her absences ,lateness and her pursuance of shorter working hours to facilitate a higher level of performance .The Complainant received a final written warning ,which caused her annoyance .She decided to appeal the sanction and was first informed that she could submit the appeal by email .On the last day permitted , she was informed that the appeal should have been in written format and she handed it in in person 1 hour before the deadline .The sanction was upheld . The Complainant was called to a further investigative meeting on 6 January, 2016 and was accompanied by a work colleague. The Comp [any would not allow her to have a representative who was not part of the company. At the meeting, the complainant advanced a rationale for the problems in her performance, absences and lateness, she also drew the connection between being refused changes in shifts or mobility to a different section of the company. The Complainant was dismissed. The Union accepted that the Complainant erred by not lodging an appeal of her dismissal and sought to link this omission to the earlier confusion around the appeal of the final written warning and the absence of professional representation. The Complainant contacted the Union on the advice of a friend. The Union submitted that the Complainant had been Unfairly dismissed following 1.5 years of service. The Complainant had difficulty when the company changed her hours. She made her difficulties known to the company and her obligation to work full time exacerbated her medical problems. The Union submitted that the Respondent was unreasonable in not granting the complainant some flexibility to support her family circumstances. The Union confirmed that the complainants record was poor, but the decision taken to dismiss her was extreme. The Union contended that the complainant was not afforded an opportunity to improve and the dismissal was disproportionate. The Union presented evidence of Loss and Mitigation. The Union concluded the case by referencing that the Complainant had medical difficulties during her employment. She was not informed that she could bring a Trade Union representative or a trained shop steward to the Appeal meeting and the company was unfair in that regard. Her representative had raised communication difficulties at the last Disciplinary hearing and this was a relevant statement. The Complainant had lived in hope of securing more suitable hours during her employment. She was denied an opportunity to take up these revised hours. Out of 2000 employees, the 10% engaged in part time indicated that a greater effort could have been made by the respondent. The Union concluded by stating that the recourse to final written warning had by passed the written warning stage and was unfair. The Company had not considered alternative sanctions to dismissal. Complainants Evidence: The Complainant outlined that she commenced work with the Respondent on 28 July, 2014.She stated that she commenced work at the same time every day over a 38.5 hr week and she had lots of friends on the business account. She was one of a few on the account in possession of a permanent contract of employment. She first met Mr LM1 during a 40-minute meeting which was introduced as a” catch up” She formed the view that she was being “sussed out”. There were no notes of the meeting. She went on to have 3 absences and was placed on “some sort of warning “. During January -March 2015, the Complainant submitted that she had lengthy meetings with Mr LM1 which led to him advising her to go part time in the interest of sustaining her job. She had changed her hours which caused her to work 9 am to 7 pm on her longest day, which resulted in an 8.30 pm home arrival. This contrasted with a home arrival of 4.30 pm previously. The Complainant recalled having a conversation with MR LM1 in March 2015 regarding Family Income Supplement and requested access to part time work. She recalled that Mr LM1 told her that he would ask the Operations Manager. She was not offered part time on her own account or on any other account. The Complainant recalled being described as a solid performer in her appraisals. The Complainant acquired a new Line Manager in May 2015, Mr LM2. Initially he was helpful towards her. She experienced foul play from him later and made a complaint in August 2015. A period of attempted resolution followed and the matter rested. Mr LM2 had told her that he would give her part time work on another account. This did not materialise. Mr LM2 then left the company. The Complainant then acquired another line Manager, Ms LM3 in November, 2015.She did not thrive and described the period as a “living hell”. A verbal complaint acquired some six months previous was about to fall off as she hadn’t had any absences for the 6-month period. She had worked back hours and Saturdays which had placed her under pressure. She was taken aback to be placed on a Final written warning in November 2015.Her conditions at work deteriorated after this and she wasn’t allowed to make phone calls. She described the Final Written warning as a death sentence. She was unsuccessful in her appeal, this caused her to lose faith in the appeal system. In addition, a colleague on whom she relied moved. This was critical for her and she began to form the view that it was “becoming impossible for her to succeed “. She began to worry about having a poor Christmas. Her shift had changed and she had lost her lift. She submitted that she had informed both Mr LM1 and MR OM that her working life was unsustainable without access to part time. The Complainant confirmed that she had started to apply for other jobs whilst still employed by the Respondent as she knew that she was going to be fired. She attended the meeting which resulted in her dismissal in the company of a work colleague. The Company did not advise that someone with knowledge could represent her. She felt very stressed. She was informed that she was being let go. She commenced looking for work within 2 weeks and submitted evidence of loss and Mitigation. The complainant confirmed that she had not considered an application for parental leave. She had worked on a part time basis before starting with the respondent. She had not actioned an application for a swop in shifts, neither had she asked to be moved to Phones. She was not medically advised to secure part time. She was not paid while she was out sick and she had regrets regarding her own management of the sick leave as her short episodes of sick leave were viewed more harshly than if she had had one unbroken period of sick leave. The Complainant also confirmed that she had not specifically requested a Trade Union Representative for the last meeting with the Respondent in January ,2016. During cross examination, the Complainant confirmed that she understood that she had been refused relocation by the respondent. There were two employees on the same account on 35 hrs and 20 hrs respectively. Further part time staff were hired. The Complainant confirmed that she had raised part time working for herself at all her Development plan meetings. She confirmed that she had been facilitated by an additional reprieve in time away from her desk times. The Doctor signed her back to work, but never said that she had been unfit. The Complainant confirmed that she had appealed all warnings that she was given up to an including the Final written warning in November 2015. She felt she was faced with a” No2 to all her requests. She did not appeal the outcome of the complaint against Mr LM2 as she wasn’t getting empathy from anyone and she felt that she was being punished for having made the complaint in the first instance. She had signed 15 forms up to 28 October ,4 plans to coach her and 3 Performance improvement plans. There were 30 employees on coaching plans. This involved sitting with someone better than you. She received coaching every day. The Complainant had a period of illness in December 2015. The Complainant outlined that she had needed balance in her working life. She recalled the Disciplinary meeting, where she was accompanied by a colleague. she under stood that this person was not permitted to speak on her behalf and she was a silent Observer. The Complainant confirmed that she had not asked Mr OM for other positions. By the time of her final Disciplinary Meeting, she had been disciplined by all three of her Team Leaders. The Complainant acknowledged that she had not appealed her dismissal but still contended that it was too harsh. |
Findings and Conclusions:
I have considered the case as presented by both parties over the three-day hearing. I have also paid special attention to the extensive documentation presented at the hearings, in particular The Complainants contract of employment, which incorporated the company Disciplinary Procedure. The Absence and Time Management Policy The Part Time work Policy The in-depth records of shifts worked by the complainant in terms of start and finish times. The Log of the Interface between the complainant and company representatives . My role in this case centres on establishing whether there were substantial grounds justifying dismissal and in assessing whether the Respondent acted fairly and reasonably in all the circumstances? Preliminary Issue: The Respondent made application for dismissal of the case on the grounds of the lack of recourse to the pro-offered appeal mechanism post dismissal. On the first day of hearing, I explained that I wished to hear the entire case before ruling on this aspect of the case. The Respondent relied on Valukevica , where the complainant in that case had a medical condition in a company without a HR Dept. The circumstances of the case led the EAT to find that a Redundancy situation abided and the claimant was obligated to exhaust the internal procedures in the first instance. The Dismissal was found to be fair. I cannot accept that the complainant’s failure to exhaust the internal mechanism of appeal post dismissal should render her application for Unfair Dismissal as vexatious. Through the submissions and evidence, I found a young Mother grappling with a challenging job. I found that she had in some way retreated from the company post the application of the final written warning in November, 2015, which had not altered on appeal. I found this to reflect an act of “anomie “rather than a deliberately vexatious act. It was ,therefore essential for me to hear all the evidence to record the above view. I have decided to reject the Preliminary argument on that basis. I will now move on to the substantive issue. I listened carefully to the case on behalf of the Respondent. I was clear that the complainant interfaced with her Team Leaders and Human Resource staff on a repeated basis from October 2014. I noted that she passed her probation and for a time at least was regarded as a Solid Performer. I must accept that the complainant had a clear “flexibility clause “in her contract of employment and the variety of shifts worked provided a window for me at least to get some sense of the back drop to the case. From the elaborate records helpfully presented by the Respondent, I noted that the complainant was recorded as starting at either 07.45 hrs or 08.15 hrs during her first year of employment. This varied to mostly 9 am and 9.30 am during the first quarter of 2015 and altered to a more varied shift after that. This varied from the position as articulated by the Complainant and her Representative. This passage of time also indicated that the complainant was struggling in terms of her performance, attendance and punctuality. I agree that the Respondent invested a lot of time in seeking to integrate the complainant fully into the workforce by means of Performance Improvement Plans Coaching and ,Return to work meetings post sick leave up to the point where the complainant was permitted a relaxation of the company rules to allow her to manage a medical condition in terms of time away from her desk . I was particularly struck by the compassion demonstrated by Ms HR1 in respect of her decision to overturn the first verbal warning .I was also struck by the company awareness that the complainant was having difficulties ,yet allowing her some time to improve . I was concerned at the Management of attendance, however, as I noted that no distinction was drawn between certified and uncertified absences or even a Force Majeure situation, as arose on at least one occasion for the complainant. I found this Policy to be very radical. I noted the undisputed lengths that the complainant went to try and make up for lost ground in terms of attendance and how frustrating it turned out to be for both parties. I also listened to the case presented by the Complainant. It was clear that she invested heavily in trying to make the job work and got on well with two of her Team Leaders. I found her to be a little over reliant on the spoken word and on her personal understanding that revised hours would follow for her outside the structures of this highly structured and regulated company. I found that the complainant was somewhat naïve in that regard. I found that the post dismissal analysis of the core role of part time working was very much a retrospective analysis rather than a real-time analysis. I accept that the complainant did not advance the application for part time hours during her employment outside the April 2015 email and the November 2015 discussions. She did not initiate the grievance procedure in pursuit of revised hours. I found that there was an abundance of meeting times, for instance three in one day on 27 and 28 October ,2015. I found that the situation was not helped by the complainant having three different line managers during her 17 months of employment. I accept that the complainant struggled to fulfil the terms of her job description for a large part of her working time. She was genuine in her intention to secure an improvement in her performance, but was sadly unsuccessful in a sustained sense. I found that the complainant lacked a consistent personal advocate during her difficulties at work. She traversed an extremely complex range of meetings with sporadic representation. She was permitted a representative by the company and chose work colleagues to accompany her on occasion .The Respondent, on the other hand had a consistent field of managers and Human resource support which may not have been a fair balance to the complainant’s unitary presentations for the most part. I found that the company was consistently represented at hearings which resulted in a clear articulation of what was expected and I found that the complainant was somewhat underrepresented as opportunities given for her to make her mark at meetings seemed under utilised . During the hearing, the Union made a strong presentation in support of the potential for their role at the respondent company. On several occasions, I had to check the parties on this point as the case was about the complainant and her employer rather than being utilised as a “Dress rehearsal for a Union Recognition story “ What I mean by personal advocate is someone who was consistently familiar with the targets set by the company and who had the skills to help the complainant navigate these meetings.There is provision for this in Statutory Instrument 146/2000. These shortcomings haven’t affected the material outcome of the case as I accept the evidence of the complainant that she had not requested Union representation at the meeting which led to her dismissal as she had only got in contact with the Union post her dismissal. I also took on board the complainants evidence that she had begun to dissociate from the company when she was unsuccessful on reversing the final written warning in November 2015. I found her approach to be pragmatic in that regard but her omission to utilise the appeal mechanism to either the Managing Director or other Senior Manager to be profound. I am mindful of her description of the Final Written Warning as a” straight jacket” sanction. I have also considered the proximity of the complaint lodged by the complainant regarding MR TL2 which was subsequently parked. I could not find that this was held against the complainant in any way. I turn now to the procedures used by the Respondent surrounding the Dismissal. The Complainant had successive disciplinary sanctions on her file from July 2015. The earlier verbal warning had been overturned in May 2015. She had appealed all sanctions short of dismissal. She was permitted a representative. I was slightly perplexed when the company indicated that the Complainant could have commissioned a professional representative as this was not inserted in the Disciplinary Policy. I found that the complainant did not know of her choices in this regard. I have found that the Respondent made a seismic effort to enable the complainant to succeed in her job. I found that the Complainant was clearly challenged by her home commitments to a young daughter and the logistics of getting to work and performing at work in a high target driven workforce. I was struck by the objectivity in Mr Oms presentation to the hearing as he entered the deliberative process surrounding the dismissal. I felt he was genuine and reasonable in his approach. I noted that the meeting was to be chaired by Ms TL3 who was ill and at any rate did not carry the authority to dismiss. Mr OM stepped in and dismissed the complainant. I had some reservations about the disciplinary hearing co-inciding with the decision taken to dismiss and I would have preferred to have seen a longer deliberative process .However, I accept that the Respondent had serious issues to put to the complainant post her absence and lateness after Christmas and she was on sufficient notice of these concerns. I note the application of O Brien and Dunnes Stores to the Respondent case, where the Labour Court determined that it was sufficient for the Employer to hold a reasonable belief that the complainant was not able to return to work to constitute a fair dismissal. In the instant case, I had reservations surrounding the inclusion of medically advised sick leave in grounds for Disciplinary sanction. I note that controversy existed regarding the lack of a medical certificate to cover the complainants final period of illness in December 2015. I also had reservations on the lack of a consistent personal peer advocate for the complainant to balance the intensive corrective action programmes in place from the earliest part of her employment. Notwithstanding those reservations, I must acknowledge that the complainant was given every opportunity to improve her performance. I found that she may have got side tracked on the requirements pertaining to the Department of Social Protection Family payment and this somehow came between her and a forthright application for part time work, which may have gone some way to securing the balance she sought in her working life. I have found that the Respondent held a genuine belief that the complainant had unreconcilable issues in her overall performance and capability .I have also found that the decision taken to dismiss the complainant was safely within the Band Of Reasonableness . I find that the Respondent has discharged the onus of establishing that there were substantial grounds justifying dismissal on this occasion and taken in tandem with the lack of recourse to the pro-offered appeal post dismissal, I find that while I had enormous sympathy for the complainant and applaud her attempts to make the job work, I must conclude that the Dismissal was fair in the circumstances of the case . |
Decision:Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found that the Respondent is entitled to rely on Section 6(4) of the Unfair Dismissals Acts and the Dismissal was fair in all the circumstances.
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Dated: 12/01/18
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Unfair Dismissal |