Complainant

Respondent

Anonymised Parties

A Cashier

An Amusement Arcade

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-00010916-001

21/04/2017

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

CA-00010916-003

21/04/2017

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

CA-00010916-004

21/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00010916-005

21/04/2017

The Complainant commenced employment with the Respondent on 1st June 2008. He was dismissed by the Respondent on 30th November 2016. A Complaint Form was lodged with the WRC on 21st April 2017. A hearing, which commenced on 29th September 2016, was adjourned at the request of the Respondent due to the unavailability of a key witness. A second hearing took place on 29th November 2017.   The parties could not agree on the gross weekly pay of the Complainant. Utilising the Complainant's P45 I have concluded that the Complainant was paid €657.00 gross per week.

A manager for the Respondent gave evidence that the Complainant had commenced employment with the company as a floor assistant in one location, had done a good job and was promoted to Cashier. The Complainant was then transferred to a bigger branch where he reverted to the floor assistant role.  

Following a NERA inspection in 2012 the company issued employees with Contracts of Employment. However, not all employees signed the contracts. The Complainant did not sign his contract, though according to the witness he was happy with it.

In the summer of 2016 shifts were changed and some staff were rotated around floors. Other changes were made to terms and conditions following a WRC intervention.   The Complainant was still doing a good job, which included some light cleaning duties.

On 28th November 2016, the witness asked the Complainant to carry out some light cleaning duties, which he refused to do. The manager told the Complainant that if he refused to do what he had been asked he would be disciplined. The Complainant did not do what he had been instructed and the manager issued him with a verbal warning. The Complainant refused to sign the warning.

Two days later, on 30th November 2016, the witness approached the Complainant and asked him to do light cleaning duties. The Complainant refused to follow the manager's instructions.   The manager then issued the Complainant with another verbal warning for refusing to obey an instruction.   The manager also told the Complainant that if he continued to refuse to do as instructed that this would lead to his dismissal. The manager then stated that, "he said 'go on'- so I dismissed him."

In cross examination, the manager stated that he was unaware that the Complainant had written to the Respondent looking for clarification on his duties. The manager denied that the two warnings and the dismissal letter were presented to the Complainant for signature at the same time.   The manger also denied that he had personally asked the Complainant to remove gum from the floor.    

A second witness for the Respondent gave evidence. He was asked by the manager to accompany him as he gave the warnings to the Complainant. This witness initially stated that the Complainant had "refused to sign all of them (warnings)". In cross examination, he stated that the warnings had been issued to the Complainant on different days

Two other witnesses for the Respondent gave evidence relating to previous warnings issued to the Complainant for the use of a mobile phone when at work.

The Respondent closed by stating that the expectation that an employee carry out a legitimate instruction is a fundamental right of an employer.

The Complainant provided a detailed written submission.

The Complainant submitted that in 2016 he had been given payslips for the first time by the Respondent. These payslips did not accurately reflect the hours and wages of the Complainant and he queried this with the Respondent.   The Complainant did not accept the explanation given by the Respondent and requested accurate payslips.

Thereafter, according to the Complainant, the Respondent began requiring the Complainant to undertake certain functions more appropriate for a member of the cleaning staff. The Complainant protested about this and wrote a letter to the Respondent on 16th November 2016 asking for a written statement of the terms and conditions of his employment as he was of the firm belief that these cleaning duties were outside the parameters of his contract.

The Complainant submitted that on 30th November 2016 his manager directed him to remove all the chewing gum that had been trodden into the floor in one of the public rooms in the building, a room which contained both tiles and carpet.

The Complainant refused, stating, "I am not a cleaner, I was employed as a Cashier". His manager told him that "the boss doesn't want you in the (public) room."   When the manager challenged the Complainant that he was refusing to perform his duties, the Complainant stated that, "I'm not refusing to do my work in the (public) room, but I'm not a cleaner." At this, it is submitted, the manager summarily dismissed the Complainant on the spot, confirming this by letter dated the same day.

In response to questions, the Complainant stated that he had been asked by his manager to clean up chewing gum on the floor. He also stated that he had never been given a contract of employment nor had one been put in front of him.

The Complainant closed by stating that this was a totally unfair dismissal in that the he had been summarily dismissed for refusing to carry out duties that he was not contracted to undertake and that the way the Complainant's termination was effected was wholly lacking in any procedure.

There were several conflicts of evidence throughout the course of the hearing. For instance, the Complainant submitted that he was instructed by his manager to clean up gum from a floor, the manager denies he said this, rather he instructed the Complainant to carry out light cleaning duties. I find it hard to believe that an argument over doing light cleaning duties could have resulted in a major contretemps taking place, however, an instruction to clean gum off a floor mostly certainly could.   The Complainant was adamant that he was told to clean gum off the floor. I prefer the evidence of the Complainant in this matter.

There was also a conflict of evidence regarding the issuing of the two verbal warnings and the dismissal letter. The Respondent's evidence was to the effect that the two warnings and dismissal letter were issued on separate days, that is on 28th & 30th November 2016, whereas the Complainant's evidence was that the three were all presented to him on one day, 30th November 2016. Apart from the manager another witness gave evidence at the hearing about the issuing of the warnings and dismissal letter. His evidence was unsure and contradictory. In the circumstances, I prefer the evidence of the Complainant.

Regarding the fairness or otherwise of the dismissal, two areas need to be examined. Firstly, the matter of the Complainant's refusal to carry out an instruction and secondly, the fairness or otherwise of the procedures utilised by the Respondent in the run up to and following the dismissal of the Complainant.

Regarding the first issue, it is accepted that an employer is fully within his or her rights to instruct an employee to carry out a task once that task is lawful and reasonable. In this case, it is agreed by both parties that an instruction was not obeyed by the Complainant. As I prefer the Complainant's evidence I am of the view that this instruction related to cleaning gum off a floor.  

So, was this instruction lawful and reasonable? Such an instruction is lawful, however, in the circumstances I do not believe it to have been reasonable.   The Complainant was a Cashier or Floor Attendant, not a cleaner. It was submitted by the Complainant that such a task could take the best part of a day to complete. Allowing for some exaggeration, I do agree with the Complainant that this would be a significant cleaning job and could not be equated to light cleaning duties.   I also agree with the Complainant that this is a job better left to the cleaners. Exacerbating this dispute was the lack of a document giving clear guidance on the tasks expected of the Complainant; a document he had sought previously but had never received.

Regarding the second issue, it is plain from even a cursory review of the case that fair procedures were absent. As stated above I prefer the evidence of the Complainant in relation to how the warnings were issued, but even taking the Respondent's version of events at face value, that a verbal warning was issued on 28th November 2016, another verbal warning on 30th November followed by a dismissal on the same day, it is difficult to see how the requirements of natural justice could have been accommodated. The Complainant was not informed of his right to representation, the right to call witnesses, the right to answer the allegations made against him or given time to make a rational decision when warned of the possible sanction that could be forthcoming. No disciplinary hearing took place. Following his dismissal, the Complainant was not given the right of appeal. All in all, the dismissal was executed without a thought being given to fair procedure or the tenets of natural justice.

If one believes the Complainant's evidence that he was handed the two warnings and the dismissal letter at the same time, which I do, then the already abominable process was even worse.

I find that this was an unfair dismissal. Since his dismissal, the Complainant has failed to find employment.   Some evidence was supplied of the efforts he has made to find work but the evidence does not point to any great effort on the part of the Complainant to mitigate his loss; I have taken this into consideration in the award made below.

The complaint under the Unfair Dismissals Act, 1977 is upheld. I decide that the Respondent is to pay the Complainant a sum of €28,908, which is equivalent to 44 weeks’ wages.

Fair procedures, reasonable, reasonable instructions