Complainant

Respondent

Anonymised Parties

{An Employee}

{A Contract Cleaning Company}

Representatives

Sheila Neary Westmeath Citizens Information Service

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-00013830-001

08/09/2017

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

CA-00013830-002

08/09/2017

The Complainant is a cleaner and is employed since 2009 with the company working 7 hours per week. She was dismissed on 1st March 2017 and has not received any other offer of employment from the company.

The Complainant is a cleaner and was employed to clean 2 offices for 7 hours per week.

She was originally employed to clean 3 shops for 21 hours per week, then her hours were cut to 7 for 2 shops in 2014. The Complainant is required to clean in accordance with a check-list however, the company’s expectations were the same for cleaning the shops even though the Complainant’s hours had been cut by 50%. The Complainant had asked to meet the company on a few occasions to discuss her new contract, reduced hours and sought CCTV/photos in relation to the complaints but this never took place. The complaints in relation to her cleaning related to mornings on which she was not working, and she did not have time to clean everything in the reduced hours.

She was suspended on pay on 24 January 2017 due to an incident which occurred at the client shop when an Inspector was present reviewing complaints made of inadequate cleaning in December 2016. The Complainant disputed the complaints made by the client in November and December and said she did not have enough time in reduced hours to deep clean the bins. She disputed all allegations in relation to the January incident by email. She sought a copy of witness statements and CCTV from the company, but only received a copy of the statements. She was called to a meeting but was not well enough to attend. The client would not give the CCTV to her. She was paid 2 months salary and was taken off paid suspension on 9th March 2017. The company said this was due to her refusal to meet them.

She had a meeting with the CEO of the company on 20th April 2017 at the offices of the Citizens Information Service and he said her conduct was a sackable offence but he would not let her go as he would not give her the opportunity to take a case against him. She was not given her P45. The CEO said the client refused to work with the Complainant and he would keep her on the books until something else came up.

The Complainant says the company failed to properly terminate her employment and she was denied due process as she was questioning her employment rights. She believes the company were trying to force her to quit her job and the standard of her cleaning was not in issue previously.

She has not received any alternative work or correspondence from the company since. The Complainant seeks reinstatement or compensation. The Complainant’s financial loss is 68.25 euro gross per week. Subsequently she obtained another cleaning job for 5 hours per week.

The Respondent is a contract cleaning company with a contract in a small town for 7 hours per week.

The Respondent says the Complainant breached her contract by confronting employees of the client company in relation to complaints made about her cleaning on 24 January 2017 when an Inspector came to meet the Complainant and client at the shop to inspect the work done. In addition, there were ongoing complaints about the Complainant’s cleaning. The Respondent says the Complainant made a “scene” at the client premises on 24 January and was placed on paid suspension while this was being investigated. The incident is disputed by the Complainant who says the store manager and Inspector said there was no problem with her cleaning and they required a deep clean of the bins.

Issues had been previously raised with the work of the Complainant in a shop by a complaint from the staff that the bins were not cleaned, rubbish in bottom of bin, skirting boards dirty, walls behind bin dirty, dust and area not cleaned on 22 November 2016. An inspector called to the shop to inspect the following day, and the employee was notified of the request to improve by email on 23 November 2016. The Complainant’s hours were increased by 1 hour to cover additional time required.

There was another complaint by the shop on 12th December 2016 in relation to the bins, walls and coffee machine. An inspector inspected the shop that day and said the bins are still filthy, the rubbish underneath had not been cleaned and walls not wiped down which had been requested in November 2016. The Complainant was notified by email and asked why standards had slipped so much in the last month. The Respondent arranged a deep clean of the bins, and requested to meet the Complainant to discuss. The Complainant was notified that if standards do not improve the client may request another cleaner.

The company says the client does not want the Complainant to return as they received a haphazard and inconsistent service.

The Complainant was employed by the Respondent as a cleaner for 21 hours per week from 2009 which was reduced to 14 hours for 2 shops in June 2014. The Complainant was on maternity-leave in 2014 and sought a new contract and to discuss her reduced hours following her return to work. The issues she raised were never discussed with her.

The Respondent’s policies reserve the right to inspect the cleaner’s location at any time to review cleaning standards and the results will be notified by email. If the cleaner fails the inspection, he/she must provide a detailed explanation as to why cleaning standards have not been maintained and a second inspection will commence and a further write up will take place. If cleaning standards have not improved by the second inspection, the company reserves the right to replace the cleaner and terminate employment.

A complaint was received about the Complainant’s cleaning on 22 November 2016 and an Inspector inspected this the following day. The Complainant was told both shops are in nice shape and was asked to improve on some issues in relation to bins, walls behind the bins and skirting boards. The time was extended for the cleaning by 1 hour.

Similar complaints were made again in December 2016 and the Complainant disputed the complaints made as her hours had been reduced by 50% while her workload remained the same. She sought photos and CCTV as the shops are public places and due to the fact there is a time gap until an Inspector inspects the shop following a complaint. She was not working on the mornings the complaints were made. In addition, she sought a new contract from the company with her reduced hours and requested to meet to discuss.

A further complaint was made on 20th January 2017. The Complainant visited the shop and could not find any mould. She then met the Inspector on 24th January 2017. The company alleges that the Complainant confronted the client about the complaints, in breach of their communications policy and caused a “scene”. This is disputed. The Complainant was placed on paid suspension pending an investigation into the incident and responded by email disputing the allegations. The Complainant did not receive a copy of the CCTV which was deleted by the client and obtained a copy of the witness statements. She was called to a meeting which she was unable to attend. Thereafter, her paid suspension was terminated by letter of 9th March 2017 with the company stating she informed them she was not in a position to attend any meetings in the near future.

The Complainant met the Respondent CEO at the Citizens Information Offices on 20th April 2017, she says he would not dismiss her as he said he would not give her an opportunity to sue him. He said the client would not work with her again and he would keep her on the books to see if something else came up.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

Serious allegations of misconduct were made against the Complainant as a result of the incident on 24th January 2017, and complaints of poor performance. These were strongly disputed by her. The Complainant believed the company was trying to force her to leave as she felt she could not complete all of the work expected in the time allocated. The company did not meet with the Complainant to discuss her concerns nor offer to deal with this through a grievance procedure.

The Respondent failed to establish through an investigation or any disciplinary procedure that the Complainant was guilty of gross misconduct and or poor performance. They did not give the Complainant any outcome to the investigation which they conducted nor any opportunity to appeal this. The disciplinary process was never invoked by the Company and the Complainant was never disciplined or formally dismissed. However, following 9th March 2017 the Complainant lost 14 hours cleaning weekly for the client, was not given any more hours and was effectively dismissed.

I find the Complainant has been unfairly dismissed on procedural grounds as no proper investigation or disciplinary process was applied by her employer. This meant she did not have any opportunity to properly challenge the allegations made against her in order to try to clear her name. This is a breach of fair procedures and natural justice, and also S.I. 146 of 2000.

The most suitable remedy in the circumstances is compensation. The Complainant has losses of 68.25 euro gross per week. The Complainant sought alternative work which was difficult to find in her locality. From November 2017, she obtained a further 5 hours per week cleaning from another employer.

I find the Complainant was unfairly dismissed on 9th March 2017, and I award her financial loss of 68.25 euro gross per week for 33 weeks until end October 2017 total 2,252.25 euro gross, together with loss of 19 euro gross per week for from November 2017 for 14 weeks total 266 euro up to the hearing date. The final total is 2,518.25 euro.

The Complainant was employed with the Respondent and was dismissed on 1st March 2017. She is owed 2 days holiday pay which was unpaid.

The Respondent denies holiday pay is due and says the Complainant breached her contract due to her conduct.

I have heard the evidence submitted by the parties. I find the complaint is well founded and the Complainant is due 2 days holidays up to the date of dismissal.

I find the complaint is well founded and direct payment by the Respondent of the underpayment of wages of 136.50 euro gross.

Annual leave owed, no dismissal, poor performance, loss of contract, fair procedures