Complainant

Respondent

Anonymised Parties

A legal secretary

A legal practice

Representatives

Self

Desmond Ryan BL .

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00009805-002

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009805-003

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009805-004

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009805-005

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009805-006

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00009805-007

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00009805-008

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00009805-009

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00009805-010

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00009805-011

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00009805-012

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00009805-013

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00009805-014

20/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00009805-001

20/02/2017

The Complainant commenced employment with the Respondent on 12th May 2014 and was dismissed for alleged serious misconduct on Friday 14th October 2016. At the hearing the Complainant stated that she was dismissed on 15th October 2016, when it was pointed out that the 15th October was a Saturday she accepted that the dismissal took place on 14th October 2016.

A complaint was lodged with the Workplace Relations Commission (WRC) on 20/02/2017, this complaint was numbered CA – 00009805. This complaint sought adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1997.

On 21/04/2017 the WRC received an additional 13 complaints from the Complainant, these can be summarised as follows:

CA – 00009805 – 002 – Hours of Work – Complaint seeking adjudication by the WRC under section 27 0f the Organisation of Working Time Act, 1997.

CA – 00009805 – 003 – Terms and Conditions of Employment – Complaint seeking adjudication by the WRC under The Terms of Employment (Information) Act 1994.

CA – 00009805 – 004 – Terms and Conditions of Employment – Complaint seeking adjudication by the WRC under the Terms of Employment (Information) Act 1994.

CA – 00009805 – 005 – Industrial Relations Issue - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA – 00009805 – 006 - Industrial Relations Issue - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA – 00009805 – 007 – Discrimination / Equality / Equal Status – Complaint seeking adjudication by the WRC under section 77 of the Employment Equality Act, 1998.

CA – 00009805 – 008 – Penalisation – Complaint seeking adjudication by the WRC under section 18 of the Parental Leave Act 1998.

CA – 00009805 – 009 – Penalisation - Complaint seeking adjudication by the WRC under section 19 of the Carer’s Leave Act 2001.

CA – 00009805 – 010 – Penalisation - Complaint seeking adjudication by the WRC under section 28 of the Safety, Health and Welfare at Work Act, 2005.

CA – 00009805 – 011 – Penalisation - Complaint seeking adjudication by the WRC under section 16 of the Protection of Employees (Part-Time Work) Act, 2001.

CA – 00009805 – 012 – Penalisation - Complaint seeking adjudication by the WRC under Schedule 2 of the Protected Disclosures Act, 2014.

CA – 00009805 – 013 - Complaint seeking adjudication by the WRC under section 16 of the Protection of Employees (Part-Time Work) Act, 2001.

CA – 00009805 – 014 – Parental, Carer’s, Maternity and Adoptive Leave - Complaint seeking adjudication by the WRC under section 18 of the Parental Leave Act 1998.

CA – 00009805 – 001 – Unfair Dismissal - Complaint seeking adjudication by the WRC under section 8 of the Unfair Dismissals Act, 1997.

By letter dated 10th May 2017 the Workplace Relations Commission informed the Complainant that she could not proceed with complaints of unfair dismissal and discriminatory dismissal i.e. parallel complaints. In her reply dated 29th May 2017 the Complainant informed the WRC that she wished to proceed with her complaint of Discriminatory Dismissal under the Employment Equality Act, 1998 and therefore withdrew her complaint under the Unfair Dismissals Act 1977.

Legal position.

CA – 00009805 – 002 – Hours of Work – Complaint seeking adjudication by the WRC under section 27 0f the Organisation of Working Time Act, 1997.

Section 27 (4) of the Act clearly states:” A right’s commissioner shall not entertain a complaint under this section if it is presented to the Commissioner after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates”

Based on Section 27(4) I have decided that the complaint under the Organisation of Working Time, 1997 fails.

CA – 00009805 – 003 – Terms and Conditions of Employment – Complaint seeking adjudication by the WRC under The Terms of Employment (Information) Act 1994.

Section 7 (3) of the Act states: “A rights commissioner shall not entertain a complaint under this section if it is presented to the Commissioner after the period of six months beginning on the date of termination of the employment concerned”.

Based on Section 7(3) I have decided that the complaint under the Terms of Employment (Information) Act 1994 fails.

CA – 00009805 – 004 – Terms and Conditions of Employment – Complaint seeking adjudication by the WRC under the Terms of Employment (Information) Act 1994.

Section 7 (3) of the Act states:” A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of six months beginning on the date of termination of the employment concerned.

Based on Section 7(3) I have decided that the complaint under the Terms of Employment (Information) Act 1994 fails.

CA – 00009805 – 007 – Discrimination / Equality / Equal Status – Complaint seeking adjudication by the WRC under section 77 of the Employment Equality Act, 1998.

Section 77 (5) of the Employment Equality Act, 1998 states that “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates”.

Based on Section 77 (5) I have decided that the complaint under the Employment Equality Act, 1998 fails.

CA – 00009805 – 008 – Penalisation – Complaint seeking adjudication by the WRC under section 18 of the Parental Leave Act 1998.

Section 18 (5) of the Parental Leave Act 1998 states “A notice under subsection (4) shall be given as soon as reasonably may be after the occurrence of the dispute concerned and in any event not later than 6 months after the occurrence of the dispute”.

Based on Section 18(5) I have decided that the complaint under the Parental Leave Act, 1998 fails.

CA – 00009805 – 009 – Penalisation - Complaint seeking adjudication by the WRC under section 19 of the Carer’s Leave Act 2001.

Section 19 (3) of Carer’s Leave Act 2001 states:“An employee making a reference under subsection (1) shall give a notice in writing containing such particulars (if any) as may be prescribed to a Rights Commissioner within 6 months of the date of the contravention giving rise to the dispute”.

Based on Section 19(3) I have decided that the complaint under Carer’s Leave Act 2001 fails.

CA – 00009805 – 010 – Penalisation - Complaint seeking adjudication by the WRC under section 28 of the Safety, Health and Welfare at Work Act, 2005.

Section 28(4) of this act states“A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the right’s commissioner considers reasonable”.

Based on Section 28(4) I have decided the complaint under Safety, Health and Welfare at Work Act 2005 fails.

CA – 00009805 – 011 – Penalisation - Complaint seeking adjudication by the WRC under section 16 of the Protection of Employees (Part-Time Work) Act, 2001.

Section 16 (3) of this act states“A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier”.

Based on Section 16(3) I have decided that the complaint under Protection of Employees (Part-Time Work) Act 2001 fails.

CA – 00009805 – 012 – Penalisation - Complaint seeking adjudication by the WRC under Schedule 2 of the Protected Disclosures Act, 2014.

Schedule 2, Section 12 (6) of the Act states “……. a rights commissioner shall not entertain a complaint under this paragraph if it is presented after the end of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Based on Schedule 2, Section 12 (6) I have decided that the complaint under Schedule 2 of the Protected Disclosures Act, 2014 fails.

CA – 00009805 – 013 - Complaint seeking adjudication by the WRC under section 16 of the Protection of Employees (Part-Time Work) Act, 2001.

Section 16 (3) of this act states“A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier”.

Based on Section 16(3) I have decided that the complaint under Protection of Employees (Part-Time Work) Act 2001 fails.

The legislation in relation to the above is quite clear in relation to 6-month time limits. Based on legislation I have no option but to fail all the above complaints.

There are two remaining complaints:

CA – 00009805 – 005 – Industrial Relations Issue - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA – 00009805 – 006 - Industrial Relations Issue - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

These are addressed below.

CA – 00009805 – 005 – Industrial Relations Issue - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA – 00009805 – 006 - Industrial Relations Issue - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA – 00009805 – 005 – Complaint in relation to disciplinary sanctions up to and including dismissal.

The complainant has the opinion that the sanctions taken by the respondent were completely exaggerated and over-stated in relation to the (unproven) allegations brought against her.

The allegations of using her mobile phone and office computer for personal reasons during working hours. These allegations are vehemently denied by the complainant.

The complainant states that she was given permission (as did the other staff) to have her phone in work in case of family emergencies. In relation to using her work computer for personal reasons the complainant accepts that she done this as did the other staff in the office.

CA – 00009805 – 006 – Bullying and Harassment procedures.

The complainant alleges that she was dismissed for complaining that she was being bullied and appealed to the respondent manager to stop.

The respondent dismissed the complainant on Friday 14th October 2016. The reasons for the dismissal are outlined in the letter of the same date and are as follows:

1.      “That you are persistently failing and or refusing to carry out reasonable instructions given to you in the course of employment.

2.      That you are persistently devoting your working time in this firm to the pursuit of your own private/personal matters using your mobile phone and the firm’s computer systems, in contravention of clear instructions to you to the contrary”.

In conclusion, the respondent continues……

“Having considered this matter, I have regrettably concluded that the wrongdoing found against you constitutes such serious misconduct as to warrant the sanction of dismissal.

This is not a decision that is taken lightly and serious consideration has been given to alternative sanctions short of dismissal. I regret to inform you, however, that I have come to the conclusion that no lesser sanction would be appropriate in this instance in circumstances where the wrongdoing found against you amounts to a complete breakdown of trust and confidence that is essential for an employment relationship to exist, particularly in a firm of solicitors.

Due to the seriousness of this misconduct, your dismissal is effective immediately, as of today, Friday 14 October 2016”.

There is no doubt that the relationship between the complainant and respondent had broken down and that the complainant’s behaviour was unacceptable.

The question that presents itself considering everything that had taken place relates to the sanction of dismissal for what is being alleged as serious misconduct.

The respondent company had no Disciplinary Procedure or Grievance Procedure in place. It may well have been the case had such procedures been in place matters may not have escalated to the levels outlined above. Section 14(1) of the Unfair Dismissals Act 1977 obliges an employer to provide a notice in writing to the employee setting out the procedure which the employer will observe before and for the purpose of dismissing the employee, this procedure must be provided to the employee within 28 days after he/she enters into a contract of employment.

I have considered this complaint in some detail and have formed the opinion that the Complainant’s behaviour was unacceptable and warranted a disciplinary sanction. The Respondent’s action in dismissing the Complainant was disproportionate. A disciplinary sanction short of dismissal may, in my opinion, have been more appropriate.

I can accept how disruptive the Complainant’s behaviour may have been in a small office environment however the Respondent had no procedures whatsoever in place to address such situations.

In relation to a case of alleged bullying that has been vehemently denied by the Respondent I can find no evidence of bullying and on this basis the complaint of bullying fails.

I recommend a payment to the Complainant of 3 months’ pay i.e. €3,890.25 and that such payment be made to the Complainant within 42 days of the date shown below.

Proportionality, industrial relations, time limits.