ADJUDICATION OFFICER CORRECTION ORDER
This Correction Order is issued pursuant to powers at section 39 of the Organisation of Working Time Act 1997 and should be read in conjunction with Adjudication Officer Decision in the matter dated 4 September, 2018
Adjudication Reference: ADJ-00007211
Parties:
| Complainant | Respondent |
Anonymised Parties | Shop Worker | Shop |
Representatives | Solicitors | Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00009510-007 | 08/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00009510-009 | 08/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-010 | 08/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-011 | 08/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00009510-012 | 08/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-013 | 08/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000 | CA-00009510-014 | 08/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009510-001 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-002 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-003 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-004 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00009510-005 | 01/02/2017 |
Date of Adjudication Hearing: 28/06/2018
Workplace Relations Commission Adjudication Officer: Ian Barrett
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed by the Respondent from the 28th October 2006 until the employment was terminated without notice on the 22nd February 2017. The Complainant was paid €10.50 per hour (Monday to Saturday) and €11.50 per hour for working on Sundays. The Complainant claims that she was unfairly dismissed. Complaint CA-00009510-009
The Complainant referred a complaint under the Terms of Employment (information) Act 1994 claiming she did not receive a document that complied with Section 3 of the Act. Complaint CA-00009510-001 The Complainant referred a complaint under Section 14 of the Organisation of Working Time Act 1997 claiming she did not receive a reasonable allowance (premium) for Sunday working. Complaint CA-00009510-002 The Complainant referred a complaint under Section 27 of the Organisation of Working Time Act 1997 claiming she was not paid for the public holidays during the period of her suspension from work. Complaint CA-00009510-003 The Complainant referred a complaint under Section 12 of the Organisation of Working Time Act 1997 claiming she did not receive her statutory entitlement to rest breaks while at work. Complaint CA-00009510-004 The Complainant referred complaints under Section 6 of the Payment of Wages Act 1991 claiming she was unfairly deducted two weeks’ pay while suspended from work and was paid less than her contractual entitlement. Complaint CA-00009510-005 The Complainant referred a complaint under the National Minimum Wage Act 2000 asserting that she was not paid the minimum wage. Complaint CA-00009510-007 The Complainant referred a complaint under Section 21 of the Organisation of Working Time Act 1997 claiming payment for public holidays she would have accrued during her notice period. Complaint CA-00009510-010 The Complainant referred a complaint under the Organisation of Working Time Act 1997 claiming she did not receive her annual leave entitlement when her employment was terminated. Complaint CA-00009510-011 The Complainant referred a complaint under the Payment of Wages Act 1991 claiming she was not given notice or payment in lieu of same when her employment was terminated. Complaint CA-00009510-012 The Complainant referred a complaint under Section 26 of the Organisation of Working Time Act 1997 referring to penalisation. Complaint CA-00009510-013 The Complainant referred a complaint under Section 36 of the National Minimum Wage Act 2000 referring to victimisation. Complaint CA-00009510-014 |
Summary of Complainant’s Case - CA-00009510-09:
The Complainant was employed as a Shop Worker. On the 22nd December 2016 she was in the office and alleged that when she went to sit down the Managing Director shouted at her telling her she took up too much room and he proceeded to kick the back of her chair, pushing her into the desk. The Complainant was upset and complained to the Shop Manager. That evening, she posted memes about ‘Bosses’ (of a derogatory nature) on her Facebook page. The following day the Complainant was working in the shop when she was called to a meeting by the Managing Director. The Shop Manager and a Supervisor were also present. She was questioned by the Managing Director about the Facebook memes. She replied by asking him why he had kicked her chair the evening before. She stated that he shouted at her and told her she was suspended for 2 weeks without pay. On Christmas Eve the Complainant telephoned the Shop Manager. He told her that the suspension would be lifted if she apologised to the Managing Director for saying that he kicked her chair at the meeting the previous day. She said she would not. On the 5th January 2017 she met with the Shop Manager, accompanied by a work colleague. He told her that if she withdrew her allegation that the Managing Director had assaulted her and apologised for calling him a liar then that would be the end of the matter. She said that she couldn’t apologise for something that had happened. She returned to work the following day. During this period the Managing Director was out of the country on business. On the 20th January the Managing Director asked the Complainant to retract the allegations she had made against him and told her that if she didn’t it could lead to her dismissal. On the 1st February the Complainant lodged several complaints (under the Organisation of Working Time Act, the Payment of Wages Act and others) with the Workplace Relations Commission against her employer. On the 6th February the Complainant was invited once more, at a meeting with the Managing Director and the Shop Manager, to retract her allegations and she refused. She was advised that the issue was now a disciplinary matter. On the 11th February the Complainant attended another meeting with the Managing Director, Shop Manager and a work colleague present and was presented with a report on an investigation into an alleged instance of “gross misconduct by way of gross insubordination”. She was shown a CCTV recording of the 22nd December 2016 when the parties were present in the office. She was told that the CCTV showed no evidence of the Managing Director kicking her chair. She was asked to apologise and retract the allegations and she refused. On the 20th February the Complainant was asked to attend a disciplinary meeting with the Managing Director, Shop Manager, the Managing Director’s spouse (a Director of the Company) and a work colleague. The Managing Director read previously prepared statements and showed CCTV footage. The Complainant asked why she was asked to be present at the meeting. She said the original suspension was because of the Facebook memes whereas now she was being told the reason for her suspension was because of the allegations she made against the Managing Director and the fact that she had called him a liar, which amounted to gross insubordination. On the 22nd February while at work the Complainant was handed an email by the Shop Manager stating that her employment had been terminated with immediate effect for gross misconduct (gross insubordination). The Complainant believes that her dismissal was unfair as there were no grounds for it and no proper procedures were followed (including the Company’s own grievance and disciplinary procedures). The Complainant also contends there is a causal link between the decision to dismiss her and her act of making complaints to the Workplace Relations Commission three weeks previously. The Complainant also states that she was denied equality of treatment as there had been other incidents where offensive material was posted on social media and these employees were not subjected to the disciplinary process. The Complainant stated that there were substantial shortcomings in the Respondent’s disciplinary process as she was not properly informed where she stood in terms of whether the matter was in the investigative or disciplinary stages of the process and she was undoubtedly denied natural justice. Finally, the Complainant contends that role of the Managing Director in the disciplinary process calls into question the fairness of the procedures followed. He was involved in the original incident that led to the dispute, he invoked an immediate suspension without pay, he conducted the investigation and then chaired the disciplinary meeting and the only time he sought ‘independent’ advice was when he asked the opinion of his wife, who appears to have made the decision that ultimately led to a decision to dismiss the Complainant without notice for gross misconduct. |
Summary of Respondent’s Case - CA-00009510-09:
The Respondent accepted that the onus of proving that a dismissal is fair lies with the employer. To do so they will show that every reasonable effort was made to avoid an outcome that resulted in the Complainant’s dismissal, but ultimately her conduct led to it. They stated that in this case the act of gross insubordination was against the owner of the business, who was wrongly accused of assault and of being a liar, allegations both grave and damning, which resulted in the Complainant being suspended from work for two weeks. It was made clear to the Complainant that this would have been the end of the matter if she withdrew her allegations and apologised for making them. Procedures were followed over a two-month period including mediation and several meetings with the Complainant. At these meetings the Complainant was told that the CCTV footage showed no evidence that the Respondent behaved in the way the Complainant alleged. The issue was made more serious when the Complainant alleged that the Company had tampered the CCTV footage. The Respondent denied any link between the Complainant filing separate complaints to the WRC on the 1st February 2017 and their decision to dismiss three weeks later. The Respondent stated that there was no desire to impose the penalty of dismissal and that every effort was made to avoid that outcome. However, in this case the allegations made against the Managing Director and owner of the business, those of assault and of being a liar, were objectionable, grave and serious. Despite being given several opportunities to do so, the use of CCTV evidence and the threat of the most serious disciplinary sanction being imposed, the Complainant refused to apologise or withdraw her allegations, leaving the Respondent with no alternative but to proceed with her dismissal, which, in all of the above circumstances, was a fair and reasonable course of action. The Respondent concluded by stating that if the dismissal is deemed to be unfair, then consideration must be given to the extent to which the Complainant contributed to her own dismissal by wilfully escalating an incident that could have been resolved by making an apology. They also noted that the option to appeal the dismissal was not made. |
Findings and Conclusions:
Gross misconduct may give rise to summary dismissal without notice or pay in lieu of notice. In this case the employer did not summarily dismiss the employee, but the process included a suspension, an attempt at mediation, investigation and disciplinary meetings prior to the decision to dismiss for gross misconduct was taken. For this dismissal to be regarded as fair, proper disciplinary procedures had to be gone through. Key tenets of the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) when contemplating a dismissal are that the procedures followed are rational and fair and that the principles of natural justice are adhered to. These would include the employer notifying the employee in writing of formal disciplinary meetings, summarising the reasons for the meetings, details of the charges being made against the employee and stating that the outcome of the process may be dismissal. The employee also has the right to be represented by an appropriate person at the disciplinary meeting. The employee is also entitled to an impartial hearing without bias or pre-judgement. In this case the Respondent, having been a central figure in the incident that led to the employee being suspended in the first instance, in the main led the investigation and disciplinary meetings. The principle of nemo judex in causa sua is well established in cases of gross misconduct. I am satisfied that the Respondent’s involvement in the initial incident and the subsequent investigation and disciplinary meetings, breached the Complainant’s right to an impartial and fair hearing. In instances where an employer acts in a manner that is procedurally unfair, but the employee contributes to their dismissal, it is within the Adjudication Officer’s remit to reflect this in the award to the employee. While the facts that led to the dismissal in this case are in dispute, based on the written and oral submissions and other evidence, I do not accept, as asserted by the Respondent, that the Complainant’s behaviour contributed to her dismissal. |
Decision:
Having considered the written and oral submissions of the parties (including audio evidence), I find that there were breaches of fair procedures and the dismissal was unfair. Based on all the evidence, including that the Complainant secured alternative employment almost immediately (with reduced working hours), I award the Complainant €5,500 for the infringement of her rights under Section 8 of the Unfair Dismissals Act, 1977 to 2015. |
Summary of Complainant’s case - CA-00009510-001:
The complainant is entitled to receive a copy of her terms and conditions of employment within two months of commencing employment (28th October 2006) and only did so on the 21st January 2016. The actual document contained other breaches of Section 3 on the Terms of Employment (Information) Act 1994. The Complainant seeks compensation of four weeks remuneration. |
Summary of Respondent’s Case - CA-00009510-001:
The Complainant was provided with an employment contract in line with the standard used in the Respondent’s sector and the Company also makes a staff handbook available to all employees |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 3 of the Terms of Employment (Information) Act 1994, I find the complaint is well founded and direct the respondent to pay the complainant the sum of €400. |
Summary of Complainant’s Case - CA-00009510-002:
The Complainant asserts that a premium of €1 per hour for Sunday working is not reasonable as per the guidelines in Section 14 of the Organisation of Working Time Act, 1997. |
Summary of Respondent’s Case - CA-00009510-002:
The Respondent asserts that Sunday is regarded as a normal working day in the retail sector and a €1 premium per hour is reasonable. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 14 of the Organisation of Working Time Act 1997, I find that the complaint is not well founded. |
Summary of Complainant’s Case - CA-00009510-003:
The Complainant asserts that she was not paid for the public holidays that fell during her period of suspension, namely Christmas day, St. Stephen’s Day and New Year’s Day. |
Summary of Respondent’s Case - CA-00009510-003:
The Respondent asserts that the Complainant was paid for Christmas Day and St. Stephen’s Day but accepts that no payment was made for New Year’s Day. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act 1997 I direct the Respondent to pay an amount of €84 to the Complainant. |
Summary of Complainant’s Case - CA-00009510-004:
The Complainant asserts that the Respondent was in breach of Section 12 of the Organisation of Working Time Act 1997, claiming she did not receive her statutory entitlement to rest breaks while at work. |
Summary of Respondent’s Case - CA-00009510-004:
The Respondent asserts that the Complainant received her statutory entitlement to rest breaks while at work and provided documentation to support their contention. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 12 of the Organisation of Working Time Act 1997, I declare the complaint is not well founded. |
Summary of Complainant’s Case - CA-00009510-005:
The Complainant is seeking redress for the decision to suspend her without pay for two weeks and is claiming that she be paid for this period. She also claims that she was not paid the correct rate of pay as per her contract of employment. She asserts that her written terms and conditions of employment state that she works a 41-hour week, which should result in weekly pay of €410. However, she only received weekly pay of €360. The shortfall, as per her contractual entitlement, is €50 per week. The Complainant is seeking redress of this weekly amount X 24 weeks, an amount of €1,200. |
Summary of Respondent’s Case - CA-00009510-005:
The Respondent asserts that the Complainant was suspended without pay for an act of gross misconduct and the sanction, given the circumstances, was appropriate. The Respondent asserts that the Complainant was paid the correct rate of pay for the hours that she worked. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and the Organisation of Working Time Act, 1997, I find that the complaint in relation to redress for the non-payment of wages during the period of suspension is not well founded. I also find that the Complainant’s claim in relation to a shortfall in her wages based on her contractual entitlement to be not well founded. |
Summary of Complainant’s Case - CA-00009510-007:
The Complainant refers to the National Minimum Wage Act 2000 and asserts that she was not paid the minimum wage. |
Summary of Respondent’s Case - CA-00009510-007:
The Respondent asserts that the Complainant was paid more than the minimum wage. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and the National Minimum Wage Act 2000, I find the complaint that the Complainant was not paid the minimum wage not to be well founded. |
Summary of Complainant’s Case - CA-00009510-010:
Under Section 21 of the Organisation of Working Time Act 1997 the Complainant is claiming payment for a public holiday (17/03/17) that would have accrued to her during her notice period. |
Summary of Respondent’s Case - CA-00009510-010:
The Respondent asserts there is no entitlement to holiday pay after employment is terminated. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 21 of the Organisation of Working Time Act, 1997, I find that the complaint is not well founded. |
Summary of Complainant’s Case - CA-00009510-011:
The Complainant asserts that she did not receive her annual leave entitlement when her employment was terminated. |
Summary of Respondent’s Case - CA-00009510-011:
The Respondent asserts that the Complainant did receive her annual leave entitlement on the date her employment ceased and provided a copy of her final payslip, dated 25/02/17, showing that a payment of €200.34 for holiday pay. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and the Payment of Wages Act, 1991, I find that the complaint is not well founded. |
Summary of Complainant’s Case - CA-00009510-012:
The Complainant asserts that the Respondent is in breach of the Payment of Wages Act 1991 and referenced the Minimum Notice and Terms of Employment Act 1973, as she was not provided with notice, or payment in lieu of her 6-week notice entitlement (having more than 10 years’ service), on the termination of her employment. The Complainant seeks compensation equivalent to 6 weeks’ pay, €2,190. |
Summary of Respondent’s Case - CA-00009510-012:
The Respondent contends that as the Complainant was dismissed for gross misconduct there is no obligation on them to make a payment for notice. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and the Payment of Wages Act, 1991, I find that the complaint is well founded and direct the Respondent to pay the Complainant the sum of €2,190, less any lawful deduction. |
Summary of Complainant’s Case - CA-00009510-013:
The Complainant referred a complaint under Section 26 of the Organisation of Working Time Act 1997 referring to penalisation. On the 1st February 2017 the Complainant made several complaints to the Workplace Relations Commission under the Organisation of Working Time Act 1997, including a Notice for Particulars seeking working time and other records from the Respondent. The Complainant was dismissed on the 22nd February 2017. The Complainant contends that this was in contravention of Section 26 of the Act and that there is sufficient causal link between her seeking to enforce her rights under the aforementioned Act and her dismissal three weeks later. |
Summary of Respondent’s Case - CA-00009510-013:
The Respondent asserts that the evidence shows that they made repeated efforts to avoid a situation that led to the Complainant’s dismissal, that a resolution to the matter in dispute was entirely in the gift of the Complainant and the decision to dismiss her was in no way linked to her seeking to enforce her rights under the Organisation of Working Time Act 1997. Accordingly, the suggestion that there was a causal link is denied. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 26 of the Organisation of Working Time Act 1997, I declare that based on the evidence heard at the hearing and other audio evidence the complaint is not well founded. |
Summary of Complainant’s Case - CA-00009510-014:
The Complainant referred a complaint under Section 36 of the National Minimum Wage Act 2000 referring to victimisation. On the 1st February 2017 the Complainant made several complaints to the Workplace Relations Commission and highlighted that a further claim would issue on the 3rd April 2017 under the National Minimum Wage Act. A Notice of Particulars seeking particulars of the Complainant’s pay was also sent to the Respondent. The Complainant was dismissed three weeks later and she asserts that this amounts to victimisation under Section 36 (2) of the National Minimum Wage Act, 2000. |
Summary of Respondent’s Case - CA-00009510-014:
The Respondent asserts that the Complainant’s contention is contrary to the facts and there is no link whatsoever between the Complainant seeking to enforce her rights under the National Minimum Wage Act 2000 and her dismissal. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 36 of the National Minimum Wage Act, 2000, I declare that based on the evidence heard at the hearing and other audio evidence the complaint is not well founded. |
Dated: 4th September 2018
Workplace Relations Commission Adjudication Officer: Ian Barrett
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00007211
Parties:
| Complainant | Respondent |
Anonymised Parties | Shop Worker | Shop |
Representatives | Solicitors | Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00009510-007 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00009510-009 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-010 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-011 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00009510-012 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-013 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000 | CA-00009510-014 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009510-001 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-002 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-003 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009510-004 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00009510-005 | 01/02/2017 |
Date of Adjudication Hearing: 28/06/2018
Workplace Relations Commission Adjudication Officer: Ian Barrett
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed by the Respondent from the 28th October 2006 until the employment was terminated without notice on the 22nd February 2017. The Complainant was paid €10.50 per hour (Monday to Saturday) and €11.50 per hour for working on Sundays. The Complainant claims that she was unfairly dismissed. Complaint CA-00009510-009
The Complainant referred a complaint under the Terms of Employment (information) Act 1994 claiming she did not receive a document that complied with Section 3 of the Act. Complaint CA-00009510-001 The Complainant referred a complaint under Section 14 of the Organisation of Working Time Act 1997 claiming she did not receive a reasonable allowance (premium) for Sunday working. Complaint CA-00009510-002 The Complainant referred a complaint under Section 27 of the Organisation of Working Time Act 1997 claiming she was not paid for the public holidays during the period of her suspension from work. Complaint CA-00009510-003 The Complainant referred a complaint under Section 12 of the Organisation of Working Time Act 1997 claiming she did not receive her statutory entitlement to rest breaks while at work. Complaint CA-00009510-004 The Complainant referred complaints under Section 6 of the Payment of Wages Act 1991 claiming she was unfairly deducted two weeks’ pay while suspended from work and was paid less than her contractual entitlement. Complaint CA-00009510-005 The Complainant referred a complaint under the National Minimum Wage Act 2000 asserting that she was not paid the minimum wage. Complaint CA-00009510-007 The Complainant referred a complaint under Section 21 of the Organisation of Working Time Act 1997 claiming payment for public holidays she would have accrued during her notice period. Complaint CA-00009510-010 The Complainant referred a complaint under the Organisation of Working Time Act 1997 claiming she did not receive her annual leave entitlement when her employment was terminated. Complaint CA-00009510-011 The Complainant referred a complaint under the Payment of Wages Act 1991 claiming she was not given notice or payment in lieu of same when her employment was terminated. Complaint CA-00009510-012 The Complainant referred a complaint under Section 26 of the Organisation of Working Time Act 1997 referring to penalisation. Complaint CA-00009510-013 The Complainant referred a complaint under Section 36 of the National Minimum Wage Act 2000 referring to victimisation. Complaint CA-00009510-014 |
Summary of Complainant’s Case - CA-00009510-09:
The Complainant was employed as a Shop Worker. On the 22nd December 2016 she was in the office and alleged that when she went to sit down the Managing Director shouted at her telling her she took up too much room and he proceeded to kick the back of her chair, pushing her into the desk. The Complainant was upset and complained to the Shop Manager. That evening, she posted memes about ‘Bosses’ (of a derogatory nature) on her Facebook page. The following day the Complainant was working in the shop when she was called to a meeting by the Managing Director. The Shop Manager and a Supervisor were also present. She was questioned by the Managing Director about the Facebook memes. She replied by asking him why he had kicked her chair the evening before. She stated that he shouted at her and told her she was suspended for 2 weeks without pay. On Christmas Eve the Complainant telephoned the Shop Manager. He told her that the suspension would be lifted if she apologised to the Managing Director for saying that he kicked her chair at the meeting the previous day. She said she would not. On the 5th January 2017 she met with the Shop Manager, accompanied by a work colleague. He told her that if she withdrew her allegation that the Managing Director had assaulted her and apologised for calling him a liar then that would be the end of the matter. She said that she couldn’t apologise for something that had happened. She returned to work the following day. During this period the Managing Director was out of the country on business. On the 20th January the Managing Director asked the Complainant to retract the allegations she had made against him and told her that if she didn’t it could lead to her dismissal. On the 1st February the Complainant lodged several complaints (under the Organisation of Working Time Act, the Payment of Wages Act and others) with the Workplace Relations Commission against her employer. On the 6th February the Complainant was invited once more, at a meeting with the Managing Director and the Shop Manager, to retract her allegations and she refused. She was advised that the issue was now a disciplinary matter. On the 11th February the Complainant attended another meeting with the Managing Director, Shop Manager and a work colleague present and was presented with a report on an investigation into an alleged instance of “gross misconduct by way of gross insubordination”. She was shown a CCTV recording of the 22nd December 2016 when the parties were present in the office. She was told that the CCTV showed no evidence of the Managing Director kicking her chair. She was asked to apologise and retract the allegations and she refused. On the 20th February the Complainant was asked to attend a disciplinary meeting with the Managing Director, Shop Manager, the Managing Director’s spouse (a Director of the Company) and a work colleague. The Managing Director read previously prepared statements and showed CCTV footage. The Complainant asked why she was asked to be present at the meeting. She said the original suspension was because of the Facebook memes whereas now she was being told the reason for her suspension was because of the allegations she made against the Managing Director and the fact that she had called him a liar, which amounted to gross insubordination. On the 22nd February while at work the Complainant was handed an email by the Shop Manager stating that her employment had been terminated with immediate effect for gross misconduct (gross insubordination). The Complainant believes that her dismissal was unfair as there were no grounds for it and no proper procedures were followed (including the Company’s own grievance and disciplinary procedures). The Complainant also contends there is a causal link between the decision to dismiss her and her act of making complaints to the Workplace Relations Commission three weeks previously. The Complainant also states that she was denied equality of treatment as there had been other incidents where offensive material was posted on social media and these employees were not subjected to the disciplinary process. The Complainant stated that there were substantial shortcomings in the Respondent’s disciplinary process as she was not properly informed where she stood in terms of whether the matter was in the investigative or disciplinary stages of the process and she was undoubtedly denied natural justice. Finally, the Complainant contends that role of the Managing Director in the disciplinary process calls into question the fairness of the procedures followed. He was involved in the original incident that led to the dispute, he invoked an immediate suspension without pay, he conducted the investigation and then chaired the disciplinary meeting and the only time he sought ‘independent’ advice was when he asked the opinion of his wife, who appears to have made the decision that ultimately led to a decision to dismiss the Complainant without notice for gross misconduct. |
Summary of Respondent’s Case - CA-00009510-09:
The Respondent accepted that the onus of proving that a dismissal is fair lies with the employer. To do so they will show that every reasonable effort was made to avoid an outcome that resulted in the Complainant’s dismissal, but ultimately her conduct led to it. They stated that in this case the act of gross insubordination was against the owner of the business, who was wrongly accused of assault and of being a liar, allegations both grave and damning, which resulted in the Complainant being suspended from work for two weeks. It was made clear to the Complainant that this would have been the end of the matter if she withdrew her allegations and apologised for making them. Procedures were followed over a two-month period including mediation and several meetings with the Complainant. At these meetings the Complainant was told that the CCTV footage showed no evidence that the Respondent behaved in the way the Complainant alleged. The issue was made more serious when the Complainant alleged that the Company had tampered the CCTV footage. The Respondent denied any link between the Complainant filing separate complaints to the WRC on the 1st February 2017 and their decision to dismiss three weeks later. The Respondent stated that there was no desire to impose the penalty of dismissal and that every effort was made to avoid that outcome. However, in this case the allegations made against the Managing Director and owner of the business, those of assault and of being a liar, were objectionable, grave and serious. Despite being given several opportunities to do so, the use of CCTV evidence and the threat of the most serious disciplinary sanction being imposed, the Complainant refused to apologise or withdraw her allegations, leaving the Respondent with no alternative but to proceed with her dismissal, which, in all of the above circumstances, was a fair and reasonable course of action. The Respondent concluded by stating that if the dismissal is deemed to be unfair, then consideration must be given to the extent to which the Complainant contributed to her own dismissal by wilfully escalating an incident that could have been resolved by making an apology. They also noted that the option to appeal the dismissal was not made. |
Findings and Conclusions:
Gross misconduct may give rise to summary dismissal without notice or pay in lieu of notice. In this case the employer did not summarily dismiss the employee, but the process included a suspension, an attempt at mediation, investigation and disciplinary meetings prior to the decision to dismiss for gross misconduct was taken. For this dismissal to be regarded as fair, proper disciplinary procedures had to be gone through. Key tenets of the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) when contemplating a dismissal are that the procedures followed are rational and fair and that the principles of natural justice are adhered to. These would include the employer notifying the employee in writing of formal disciplinary meetings, summarising the reasons for the meetings, details of the charges being made against the employee and stating that the outcome of the process may be dismissal. The employee also has the right to be represented by an appropriate person at the disciplinary meeting. The employee is also entitled to an impartial hearing without bias or pre-judgement. In this case the Respondent, having been a central figure in the incident that led to the employee being suspended in the first instance, in the main led the investigation and disciplinary meetings. The principle of nemo judex in causa sua is well established in cases of gross misconduct. I am satisfied that the Respondent’s involvement in the initial incident and the subsequent investigation and disciplinary meetings, breached the Complainant’s right to an impartial and fair hearing. In instances where an employer acts in a manner that is procedurally unfair, but the employee contributes to their dismissal, it is within the Adjudication Officer’s remit to reflect this in the award to the employee. While the facts that led to the dismissal in this case are in dispute, based on the written and oral submissions and other evidence, I do not accept, as asserted by the Respondent, that the Complainant’s behaviour contributed to her dismissal. |
Decision:
Having considered the written and oral submissions of the parties (including audio evidence), I find that there were breaches of fair procedures and the dismissal was unfair. Based on all the evidence, including that the Complainant secured alternative employment almost immediately (with reduced working hours), I award the Complainant €5,500 for the infringement of her rights under Section 8 of the Unfair Dismissals Act, 1977 to 2015. |
Summary of Complainant’s case - CA-00009510-001:
The complainant is entitled to receive a copy of her terms and conditions of employment within two months of commencing employment (28th October 2006) and only did so on the 21st January 2016. The actual document contained other breaches of Section 3 on the Terms of Employment (Information) Act 1994. The Complainant seeks compensation of four weeks remuneration. |
Summary of Respondent’s Case - CA-00009510-001:
The Complainant was provided with an employment contract in line with the standard used in the Respondent’s sector and the Company also makes a staff handbook available to all employees |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 3 of the Terms of Employment (Information) Act 1994, I find the complaint is well founded and direct the respondent to pay the complainant the sum of €400. |
Summary of Complainant’s Case - CA-00009510-002:
The Complainant asserts that a premium of €1 per hour for Sunday working is not reasonable as per the guidelines in Section 14 of the Organisation of Working Time Act, 1997. |
Summary of Respondent’s Case - CA-00009510-002:
The Respondent asserts that Sunday is regarded as a normal working day in the retail sector and a €1 premium per hour is reasonable. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 14 of the Organisation of Working Time Act 1997, I find that the complaint is not well founded. |
Summary of Complainant’s Case - CA-00009510-003:
The Complainant asserts that she was not paid for the public holidays that fell during her period of suspension, namely Christmas day, St. Stephen’s Day and New Year’s Day. |
Summary of Respondent’s Case - CA-00009510-003:
The Respondent asserts that the Complainant was paid for Christmas Day and St. Stephen’s Day but accepts that no payment was made for New Year’s Day. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act 1997 I direct the Respondent to pay an amount of €84 to the Complainant. |
Summary of Complainant’s Case - CA-00009510-004:
The Complainant asserts that the Respondent was in breach of Section 12 of the Organisation of Working Time Act 1997, claiming she did not receive her statutory entitlement to rest breaks while at work. |
Summary of Respondent’s Case - CA-00009510-004:
The Respondent asserts that the Complainant received her statutory entitlement to rest breaks while at work and provided documentation to support their contention. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 12 of the Organisation of Working Time Act 1997, I declare the complaint is not well founded. |
Summary of Complainant’s Case - CA-00009510-005:
The Complainant is seeking redress for the decision to suspend her without pay for two weeks and is claiming that she be paid for this period. She also claims that she was not paid the correct rate of pay as per her contract of employment. She asserts that her written terms and conditions of employment state that she works a 41-hour week, which should result in weekly pay of €410. However, she only received weekly pay of €360. The shortfall, as per her contractual entitlement, is €50 per week. The Complainant is seeking redress of this weekly amount X 24 weeks, an amount of €1,200. |
Summary of Respondent’s Case - CA-00009510-005:
The Respondent asserts that the Complainant was suspended without pay for an act of gross misconduct and the sanction, given the circumstances, was appropriate. The Respondent asserts that the Complainant was paid the correct rate of pay for the hours that she worked. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and the Organisation of Working Time Act, 1997, I find that the complaint in relation to redress for the non-payment of wages during the period of suspension is not well founded. I also find that the Complainant’s claim in relation to a shortfall in her wages based on her contractual entitlement to be not well founded. |
Summary of Complainant’s Case - CA-00009510-007:
The Complainant refers to the National Minimum Wage Act 2000 and asserts that she was not paid the minimum wage. |
Summary of Respondent’s Case - CA-00009510-007:
The Respondent asserts that the Complainant was paid more than the minimum wage. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and the National Minimum Wage Act 2000, I find the complaint that the Complainant was not paid the minimum wage not to be well founded. |
Summary of Complainant’s Case - CA-00009510-010:
Under Section 21 of the Organisation of Working Time Act 1997 the Complainant is claiming payment for a public holiday (17/03/17) that would have accrued to her during her notice period. |
Summary of Respondent’s Case - CA-00009510-010:
The Respondent asserts there is no entitlement to holiday pay after employment is terminated. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 21 of the Organisation of Working Time Act, 1997, I find that the complaint is not well founded. |
Summary of Complainant’s Case - CA-00009510-011:
The Complainant asserts that she did not receive her annual leave entitlement when her employment was terminated. |
Summary of Respondent’s Case - CA-00009510-011:
The Respondent asserts that the Complainant did receive her annual leave entitlement on the date her employment ceased and provided a copy of her final payslip, dated 25/02/17, showing that a payment of €200.34 for holiday pay. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and the Payment of Wages Act, 1991, I find that the complaint is not well founded. |
Summary of Complainant’s Case - CA-00009510-012:
The Complainant asserts that the Respondent is in breach of the Payment of Wages Act 1991 and referenced the Minimum Notice and Terms of Employment Act 1973, as she was not provided with notice, or payment in lieu of her 6-week notice entitlement (having more than 10 years’ service), on the termination of her employment. The Complainant seeks compensation equivalent to 6 weeks’ pay, €2,190. |
Summary of Respondent’s Case - CA-00009510-012:
The Respondent contends that as the Complainant was dismissed for gross misconduct there is no obligation on them to make a payment for notice. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and the Payment of Wages Act, 1991, I find that the complaint is well founded and direct the Respondent to pay the Complainant the sum of €2,190, less any lawful deduction. |
Summary of Complainant’s Case - CA-00009510-013:
The Complainant referred a complaint under Section 26 of the Organisation of Working Time Act 1997 referring to penalisation. On the 1st February 2017 the Complainant made several complaints to the Workplace Relations Commission under the Organisation of Working Time Act 1997, including a Notice for Particulars seeking working time and other records from the Respondent. The Complainant was dismissed on the 22nd February 2017. The Complainant contends that this was in contravention of Section 26 of the Act and that there is sufficient causal link between her seeking to enforce her rights under the aforementioned Act and her dismissal three weeks later. |
Summary of Respondent’s Case - CA-00009510-013:
The Respondent asserts that the evidence shows that they made repeated efforts to avoid a situation that led to the Complainant’s dismissal, that a resolution to the matter in dispute was entirely in the gift of the Complainant and the decision to dismiss her was in no way linked to her seeking to enforce her rights under the Organisation of Working Time Act 1997. Accordingly, the suggestion that there was a causal link is denied. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 26 of the Organisation of Working Time Act 1997, I declare that based on the evidence heard at the hearing and other audio evidence the complaint is not well founded. |
Summary of Complainant’s Case - CA-00009510-014:
The Complainant referred a complaint under Section 36 of the National Minimum Wage Act 2000 referring to victimisation. On the 1st February 2017 the Complainant made several complaints to the Workplace Relations Commission and highlighted that a further claim would issue on the 3rd April 2017 under the National Minimum Wage Act. A Notice of Particulars seeking particulars of the Complainant’s pay was also sent to the Respondent. The Complainant was dismissed three weeks later and she asserts that this amounts to victimisation under Section 36 (2) of the National Minimum Wage Act, 2000. |
Summary of Respondent’s Case - CA-00009510-014:
The Respondent asserts that the Complainant’s contention is contrary to the facts and there is no link whatsoever between the Complainant seeking to enforce her rights under the National Minimum Wage Act 2000 and her dismissal. |
Decision:
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 36 of the National Minimum Wage Act, 2000, I declare that based on the evidence heard at the hearing and other audio evidence the complaint is not well founded. |
Dated: 4th September 2018
Workplace Relations Commission Adjudication Officer: Ian Barrett
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