ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007481
Parties:
| Complainant | Respondent |
Anonymised Parties | Investment Analyst | A Product Distribution Company |
Representatives |
| Orla Wall A & L Goodbody Solicitors |
Complaint(s):
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-00010021-001 | 03/03/2017 |
Date of Adjudication Hearing: 24/11/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with 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).
Because the Complainant has raised dismissal related wholly or mainly from her alleged Protected Disclosures and because in her statement on the Complaint Form she has stated that the disciplinary process was inherently unfair and her termination unjustified, I must cover both these issues in my decision.
Background:
The Complainant commenced her employment with the Respondent on 19th August 2013. Her employment ended on 5th September 2016. A Complaint Form was received by the WRC on 3rd March 2017. |
Preliminary Point: Out of Time
The Respondent put forward that the Respondent had received notification from the WRC that a complaint had been lodged on 5th April 2017 and as the termination had taken place on 5thSeptember 2016 the complaint was out of time. On review of the case file however this letter turned out to be the second letter sent to the Respondent by the WRC. The date of 5th April 2017 contained in the letter related to a communication sent by the Complainant, not the date when the complaint was lodged.
The case file also contained a copy of a letter dated 14th March 2017, which had been sent to the Respondent stating that a Complaint Form had been received by the WRC from the Complainant on 3rd March 2017. The person to whom that letter was addressed was at the hearing and he gave evidence that he had no recollection of receiving this letter.
I am satisfied that the complaint was lodged with the WRC within the required period. I am also satisfied that the Respondent was properly notified of the complaint. Therefore, the complaint is in time.
Summary of Respondent’s Case:
The Respondent provided a detailed submission and a comprehensive book of papers. (i) Protected Disclosure Allegation Having reviewed the Complainant's submission, the Respondent is of the view that her submission contains no relevant information in respect of this allegation or her complaint as presented to the WRC. The Respondent also submitted that the Complainant did not make a "protected disclosure", within the meaning of the Protected Disclosures Act 2014 and has no entitlement to the protections afforded by that Act. The Respondent submitted that the circumstances giving rise to the termination of the Complainant's employment were 'avoidable' had she focussed her talents on engaging with the Respondent, its processes and her employment. A consistent feature of the Complainant's dealings with the Respondent is her failure to respect the Respondent's procedures, its management structure and being managed. Furthermore, the Respondent submits, the Complainant's misguided insistence in accusing the Respondent of fraudulent activity every time she was sent a letter inviting her to participate in a disciplinary meeting/process was conduct that resulted in a break down in the relationship between the Complainant and the Respondent. The Respondent's view that the Complainant had not made any protected disclosures remained unchanged following the Complainant's oral evidence.
(ii) Allegation of Unfair Dismissal The Respondent submits that the Complainant was not unfairly dismissed as there were substantial grounds justifying the termination of the Complainant's employment on grounds of her conduct. The Respondent submitted that in April 2015 the Complainant was placed on a performance improvement Plan (PIP) because of poor performance and inappropriate communications. The PIP was dated from 6th April 2015 to 6th July 2015. The Complainant did not successfully pass the PIP. During the PIP period the Complainant's communication with her manager was poor and she was invited to an informal counselling meeting regarding this issue. The Complainant was subsequently given a letter explaining that she was required to; (i) demonstrate an immediate and sustained improvement in her conduct at work and (ii) demonstrate appropriate written and oral communication skills at work with all parties. There were also difficulties with the Complainant regarding working from home without permission. Following the initial PIP process, the Complainant's performance did not improve. On 4th April 2016, the Complainant was invited to a Disciplinary Investigation to discuss the Complainant's failure to obtain prior approval before working from home and further her failure to make the improvements required from the counselling letter. The Complainant refused to attend this Disciplinary meeting and she alleged that the meeting was part of a "fraud". The meeting proceeded in the Complainant's absence and it was decided from the investigation that the Complainant should receive a Formal Verbal Warning. The Complainant was given a Formal Verbal Warning on 7th April 2016. In March 2016, the Complainant was put on a second PIP which lasted from 4th March until 6th May 2016. Her poor performance and inappropriate communications continued and she failed to make the required improvements as detailed in the PIP. In May 2016, the Complainant was invited to attend a disciplinary Investigation meeting to discuss her poop performance and inappropriate communications. The Complainant refused to attend the Disciplinary Investigation meeting, again citing that the person with whom she was to meet was involved in a fraud. The meeting proceeded in the Complainant's absence and it was decided from the investigation that the Complainant should receive a Formal Written Warning. The Complainant was given a Formal Written Warning on 9th June 2016. In May 2016, the Complainant was put on a third PIP which lasted four weeks from 23rd May 2016 to 17 June 2016. During this period the complainant's poor performance and inappropriate communications issues continued and she failed to make the required improvements as detailed in the PIP. As the Complainant had failed her PIP, Mr F was appointed as a Disciplinary Investigator, independent of her line manager, to deal with the process. On 7th July 2016 the Complainant was invited to a disciplinary hearing to discuss an alleged failure to demonstrate appropriate written and oral communications and sustained improvement in her conduct at work, as required in the Final Written Warning. The invitation also warned the Complainant that she would be required at the meeting to outline why a serious disciplinary sanction, up to and including dismissal, should not be imposed on her. The letter went into detail on the allegations that the Complainant would have to reply to at the meeting. The Complainant failed to attend the disciplinary hearing. She contacted Mr F confirming that she did not attend the disciplinary hearing because she did not know him and did not report to him. Mr F contacted the Complainant by email explaining who he was and his role in the matter. Mr F later informed the Complainant that the disciplinary meeting would proceed on 14th July 2016. The Complainant confirmed she would not attend because she believed he did not have authority to conduct the meeting. An incident occurred on 11th July between the Complainant and her manager. The manager alleged that the Complainant spoke to her in an inappropriate, threatening and aggressive manner. The manager also notified the Respondent that this was the second time that the Complainant had demonstrated threatening and aggressive behaviour towards a team member in recent days. Due to the seriousness of the Complainant's conduct she was suspended with pay pending the conclusion of the disciplinary hearing. The complainant failed to attend the disciplinary hearing scheduled for 14th July 2016. Mr F wrote to the Complainant rescheduling the disciplinary hearing to 22nd July 2016. He also amended the allegation to include two new allegations in respect of the alleged threatening behaviour. The Complainant failed to attend the rescheduled disciplinary hearing. Mr F wrote to the Complainant on 25th July 2016 and rescheduled the disciplinary hearing for a third time to 27th July 2016. He also warned the Complainant that if she failed to attend a decision would be made in her absence. On 27th July 2016 the Complainant wrote to Mr F confirming that she would not attend again alleging that the letter was fraudulent. The disciplinary hearing proceeded in the Complainant's absence. On 5th August 2016 Mr F wrote to the complainant enclosing the disciplinary outcome report and detailing his findings. Having partially upheld one allegation and fully upholding the second his decision was that the Complainant's employment should be terminated with notice. In oral evidence Mr F explained that he felt the Complainant's behaviour was such as to justify dismissal. The Complainant did not engage with the process which left him with little scope to do anything other than dismiss the Complainant. The Respondent submitted that its PIPs process was both fair and reasonable having regard to the performance pattern of the Complainant. However, the Complainant's employment was not terminated because she failed the PIP process. Her employment was terminated because of her poor conduct during the PIP process, her repeated refusal to accept a reasonable management instruction and her overall conduct and attitude towards her colleagues as set out above. The complainant was informed of her right to appeal every disciplinary sanction but she did not avail of this right. In concluding the Respondent submitted that through her own conduct the Complainant irretrievably breached her relationship with her employer. Her actions, when viewed in the round, could allow no decision other than the termination of her employment. |
Summary of Complainant’s Case:
The Respondent provided a Chronological Summary and a book of papers. In the circumstances around this case I believe fairness is best served by brevity; I will summarise the case relayed by the Complaint at the hearing and in her submission briefly. (i) Protected Disclosure Allegation In oral evidence, the Complainant outlined the matters she says she raised as "Protected Disclosures". The Complainant stated that there had been falsification of internal policies & procedures relating to Bullying and Harassment; fraud in relation to a change in healthcare provider; staff had been issued with false identities; that a fictitious company had been created to misappropriate funds; and staff were moved to facilitate the recruitment of fellow conspirators. (ii) Allegation of Unfair Dismissal The Complainant's submission states that having reported her suspicions of on-going fraud in her workplace to the Gardaí she was put on a PIP. She submitted that the manager dealing with her was unprofessional and did not did not understand the job roles. The Complainant also denied that she did not follow procedures regarding working from home and that the letters she received regarding this matter were fraudulent and not in compliance with company policies. The Complainant submitted that the counselling letter and disciplinary letters she received were also fraudulent. She submitted that the disciplinary process was not followed correctly. In oral evidence, the Complainant stated that the letters she received from the Respondent were fraudulent as the authors had no authority to write them. She also stated that her former colleagues did not follow internal policies whereas she had. She followed business contact guidelines because everyone else was involved in the fraud. She did not appeal the decision to dismiss her because the person who would have heard her appeal is also involved in the fraud. |
Findings and Conclusions:
(i) Protected Disclosures The Complainant, in her Complaint Form Statement, stated inter allia; "I was dismissed as a result of having made a Protected Disclosure within the meaning of the Protected Disclosures Act, 2014. I had raised concerns with my employer concerning issues of fraud or potential fraud. As a result I was subjected to a disciplinary process which ultimately resulted in my dismissal. " It goes without saying that my role is not to look into, or make findings upon, the matters raised by the Complainant in the disclosures. My role is to determine whether the complainant has been subjected to penalisation for having made the disclosures. Section 3 of the Protected Disclosures Act provides for the following definition of penalisation: “penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes— (a) suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty), (e) unfair treatment, (f) coercion, intimidation or harassment, (g) discrimination, disadvantage or unfair treatment, (h) injury, damage or loss, and (i) threat of reprisal. The Complainant asserts that she was penalised in being subjected to a Performance Improvement Plan (PIP) and subsequently a disciplinary process ultimately leading to her dismissal because of the disclosures she had made. The respondent denies the claim. The Labour Court in McGrath Partnership v Monaghan PDD162 held as follows: “The [Protected Disclosures] Act is a new piece of legislation with limited case law, however, the provisions regarding penalisation are broadly similar to those provided in the Safety Health and Welfare Act, 2005. As this Court pointed out in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21, it is clear from the language of Section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the 2005 Act. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for" the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.” Having considered the written and oral submissions of the parties, I find that the disciplining and dismissal of the complainant for her ongoing poor performance and conduct does not meet the “but for” test outlined by the Labour Court and applied to penalisation claims made pursuant to the Protected Disclosures Act. I make this finding for the following reasons; the Complainant was performing poorly at work and this matter had to be addressed by the Respondent. From the evidence adduced by the Respondent it is my view that everything that could be done was done to assist the Respondent deal with the difficulties she was experiencing. The fact that the Complainant continued to breach regulations regarding communications and interactions with colleagues, despite having received formal warnings for same, allied to her inability or unwillingness to address her performance difficulties, left the Respondent with no option but to continue along the disciplinary process. The disciplinary actions taken by the Respondent were not linked to the alleged Protected Disclosures made by the Complainant. (ii) Unfair Dismissal I have considered this matter carefully. The Unfair Dismissals (Amendment) Act 1993 provides that I am required to consider the “reasonableness… of the conduct of the employer (whether by act or omission)… in relation to the dismissal”. Section 6 of the Unfair Dismissals Act 1977 sets out the onus of proof is on the Respondent and that all dismissals are deemed unfair unless there are substantial grounds justifying the dismissal. In deciding on the fairness or otherwise of this dismissal a number of questions need to be answered. 1. Were there substantial grounds to justify the dismissal? I am satisfied there were. They Complainant's behaviour during the period leading up to her dismissal was well below that acceptable in a work place. The repeated accusations of fraud made by the Complainant against the Respondent each time she was invited to a disciplinary investigation or hearing served only to destroy the relationship between the parties. 2. Was the sanction of dismissal proportionate? I am satisfied it was. The Respondent had done all that could reasonably be expected of an employer to assist the Complainant but these efforts were to no avail. The Complainant's decision not to participate in the disciplinary process and her continued abrasive behaviour left the Respondent with little choice other than to dismiss.
3. Were the procedures used in the disciplinary process fair? (i) Did the Respondent adhere to its Disciplinary Policy and was that Policy fair? Yes, the Respondent followed procedures closely and the policy was fair. (ii) Was the Complainant given adequate details of the allegations to be able to adequately address them? Yes, she was given details of the allegations to be answered in great detail. (iii) Was the Complainant afforded an opportunity to defend herself and have her arguments and submissions listened to and evaluated by the Respondent in relation to the threat to her employment? Yes, the Complainant was afforded every opportunity to defend herself and have her arguments and submissions listened to but chose not to do so. The Respondent went beyond the call of duty by inviting the Complaint to a disciplinary hearing three times. (iv) Was the Complainant informed of her right to appeal the decision to dismiss? Yes, she was informed of her right to appeal the decision to dismiss her but she chose not to avail of this right. In summary, the Complainant was entirely the author of her own misfortune and as such her complaint must fail. |
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.
It is my view that the Complainant was afforded due process and, that in the circumstances, the decision to dismiss was reasonable and proportionate. For these reasons, I do not believe that the Complainant was unfairly dismissed and therefore her claim under the Unfair Dismissals Act, 1977, fails. |
Dated: 15th March 2018
Workplace Relations Commission Adjudication Officer: Roger McGrath