Complainant

Respondent

Anonymised Parties

A Council worker

A local Authority

Representatives

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-00014158-001

22/09/2017

The Complainant is seeking redress under the Unfair Dismissals legislation in circumstances where he was dismissed from his employment of 18 months for misconduct including the use of inappropriate language and the failure to follow a reasonable direction.

The Complainant gave evidence on his own behalf and made the case that the Respondent has been disingenuous. The Complainant is absolutely clear that his Supervisor was putting enormous pressure on the Complainant to get a facility cleaned up and in particular was demanding that the Complainant get down on his hands and knees to scrub 40 square meters of floor. The Complainant accepts that he refused to carry out this task and accepts that a row broke out and that he used expletives.

The Respondent made it’s case by way of submission and oral evidence. In particular, the Respondent stood by it’s in house procedures as having been appropriate. The Respondent maintains that the Dismissal was justified in circumstances where the Complainant, it says, was hostile to his Supervisor and refused to carry out a reasonable request.

I have carefully considered the evidence adduced during the hearing. The Complainant was brought into the respondent Council under a social employment initiative known as “Gateway”. The initiative provides work experience to persons unemployed and on the live Register. The remunerative benefit is small, amounting to about €23.00 over and above employment benefit. However, it is hoped that candidates might avail of the opportunity to increase skillsets and generally create their own opportunities from within a workplace.

The Complainant was contracted to work for this local authority’s Parks Department for 22 months commencing on the 1st of January 2016. The Complainant enjoyed the work and believes that he and his co-worker DMCC worked well together and gave a full commitment to the maintenance of the Interpretive Centre to which he had been assigned.

It is common case that the Supervisor had indicated that there was a delegation of visitors due to attend towards the end of June 2017. The Supervisor was clearly anxious that the Centre would be spotless for the expected visitors and advised the complainant and his colleague of this fact. The Complainant said that the Supervisor had been heavy handed from the start saying that if the premises was not spotless they would have to do it all over again.

The Complainant had swept and mopped the floor and the Supervisor was unhappy with the job done. The Supervisor wanted the Complainant to clean the metal treads on the staircase and suggested that the most effective way that this should be done was on his hands and knees with a brillo pad.

The Complainant appears to have formed the possibly mistaken impression that he and his colleague were being asked to clean the whole floor area (40 sq meters) on their hands and knees using brillo pads. The Complainant’s colleague DMCC confirmed in evidence that he got down on his hands and knees to clean the floor though he advised me that this was just for an isolated spot and he had not intended or thought to do the entire floor in this way. The best way to clean such a floor is with a buffer. DMMC was not stopped from cleaning the floor with the brillo pad.

The Complainant saw DMMC on his hands and knees and was most unhappy at the idea that he was going to have to perform the enormous task of cleaning this floor on his hands and knees using a brillo pad. He was provided with knee pads.

A row broke out between the Supervisor and the Complainant. The Complainant was most unhappy at being asked to get down on his hands and knees to scrub the floor with a brillo pad. He felt it was demeaning to him and that his meagre pay did not justify this direction. Each says the other behaved inappropriately and aggressively. I have been told that there had been no previous row or difficulty between these two employees and that the row was in the words of DMMC “very very unusual”. The Complainant concedes that he told his Supervisor to F*Off and that he accepted it was inappropriate. The Complainant was asked to leave the premises by his supervisor.

The Supervisor reported the incident to his line Manager Mr. H and requested that the incident be investigated. Mr. H met with the Complainant who was accompanied by a friend and the meeting was conducted in the presence of the Supervisor. My impression is that this meeting is intended to be an investigation meeting though Mr. H does not, to my mind, conduct it as an investigation. For example, he does not tease out the issue of how the Complainant formed the impression that the whole floor was to be cleaned using a brillo pad. The presence of the Supervisor at this meeting puts the Complainant on the back foot. The Complainant is repeatedly asked to accept that his behaviour is wrong which again I would suggest is beyond the scope of what is meant to be fact-finding investigation. The Complainant is suspended on full pay.

For reasons not explained, Mr. H communicates with the Superintendent of Parks (who is in effect the head of the whole department) seeking permission to terminate the employment. This is done in advance of the Disciplinary process having been commenced or processed. I would have to draw the conclusion that a decision has been made at this point.

In any event a Ms.T purports to take over what must be the Disciplinary process and invites the Complainant to a meeting which is not described as a Disciplinary meeting and the Complainant is given no forewarning that the outcome of this meeting might be a sanction up to and including his dismissal. There are no notes of this meeting. I have no idea what account the Complainant gave at this meeting. Surprisingly, Ms. T did not meet with anyone else regarding the incident, and in her letter of the 8th of August 2017 she concedes that the starting point of this meeting was a report wherein local management had already recommended dismissal. Needless to say, the letter of the 8th of August does in fact dismiss the Complainant.

The Complainant moves to Appeal the decision and Mr.HB conducts an appeal and the notes of this meeting does disclose a more probing interview than anything conducted by Ms. T. I would have to note that the Complainant was at a disadvantage by not having a Union representative at his side. I do not intend to criticise his friend who did attend, but someone with a bit more experience might have pushed the Employer into for example considering a lesser sanction. This did not happen even though the Complainant had an excellent work rate and record. Mr.HB does not talk to the independent witness DMMC and his interview with the Supervisor does not seek to understand how the Complainant came to misunderstand that the entire floor was to be cleaned using brillo. In this regard, I note that it was only before the WRC that DMMC was asked and it came to light about the fact that he was cleaning the floor area (and not the steps) with a brillo pad. This crucial point was therefore missed by Mr. H in the investigation, Ms.T at the disciplinary and Mr.HB on Appeal.

On balance, I would have to find that the procedures adopted by the Employer were most unsatisfactory and unfair. In fact, some aspects of the process would have to give rise to concern. So, for example referring the matter to the head of the department for the permission to terminate employment while a process is still ongoing is highly prejudicial as is Inviting the Complainant to a meeting without specifying that the meeting could result in his dismissal is a basic HR requirement – the lack of which in an employer of this size and with this HR function experience, is worrying.

Neither Ms. T not Mr.HB saw this is as a once off incident. I myself, elicited from the Supervisor that he would have accepted the Complainant’s return to the workplace under Guarantee that this would not happen again. I find the sanction to have been unduly harsh in all the circumstances and believe a warning would have been sufficient especially in light of the fact that the Complainant only had a further two to three months to run on the 22-month Contract.

In terms of loss, I accept that the Complainant was receiving circa €23.00 per week from this employer which was supplemental to his unemployment benefit which the Complainant continues to be paid up to this point in time. The Complainant’s Contract was due to end on the 1st of December 2017. The Complainant was at a loss of earnings in the amount of €280.00.

I find in favour of the Complainant and find that he was unfairly dismissed and award his full remunerative losses of €280.00