ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012307
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaning Supervisor | A Cleaning Services Provider |
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-00016270-001 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016270-002 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00016270-003 | 11/12/2017 |
Date of Adjudication Hearing: 25/04/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant commenced employment with the Respondent, a cleaning services provider, in February 2014. At the time of her dismissal she held the role of Site Supervisor. She was dismissed on 6th August 2017. Her gross weekly pay was €409.50. She lodged a complaint with the WRC on 11th December 2017.
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CA-00016270-001 Claim under the Unfair Dismissal Act, 1977
Summary of Respondent’s Case:
The Respondent provided a detailed written submission. The Respondent denies that the Complainant was unfairly dismissed and submits that she was dismissed by reason of Gross Misconduct and that she was afforded due process. The Respondent submits that the Complainant held the role of Site Supervisor and was responsible for staff management which included organising staff hours of work, submitting payroll information and other associated duties. As part of her duties she was responsible for overseeing and completing time-sheets and sending them to head office. The time-sheets were the basis upon which all staff were paid. Time-sheets that are submitted should reflect accurately the hours worked by the staff on site. It was the Complainant's responsibility to make sure the time-sheets were accurate. In February 2017, the Respondent was contacted by their client who was concerned in relation to the signing-in book which was used by the cleaning staff. Because of the concerns raised the signing-in book was moved to the main reception area. In March 2017, concerns arose regarding the Complainant's high level of hours. The Complainant explained that she had been covering for her son, who worked as a cleaner in the same site, and had been putting in for his hours. It was noted that the Complainant had been booking her hours at the supervisory rate. The Complainant was told by her manager that if she was covering such hours that it should be at the standard rate. The Respondent was still concerned at the level of hours recorded and the contract manager was tasked with going through the signing-in book and comparing it with the time-sheets. During this investigation it was discovered that there were several variances in relation to the Complainant's son, suggesting that he had not been on site but yet was being recorded for hours on time-sheets which had been paid. As a result of this investigation the Complainant was invited to an investigation meeting which took place on 6th July 2017, at which she was accompanied by a SIPTU Representative. At the investigation meeting, the Complainant, when challenged about payments to her son, maintained that there were occasions when he would sign out in the "sign in " book and then return to work even though he was neither rostered to do this work nor was this recorded as work being done. A discrepancy regarding holiday pay for the Complainant's son, whereby the Complainant credited her son with 70 hours holiday pay when he was due on 35 hours holiday pay, was also discussed at the meeting. Following the investigation, it was decided that it was necessary to hold a disciplinary hearing. In the interim the Complainant was suspended with pay. A disciplinary hearing took place on 18th July 2017. This disciplinary hearing was adjourned to allow for further investigation. A reconvened hearing took place on 27th July. At both hearings the Complainant maintained she was not aware of the company's procedures regarding staff signing in and out of work and she also submitted she did not appreciate the relevance of the information submitted to payroll. The Complainant also stated that she did not always check the signing-in book as she already knew the hours staff worked. The Respondent submits that a further review which identified very few additional problems in relation to members of staff, whilst there was a significant number of issues relating to both the Complainant and her son. Other discrepancies were also noted. According to the Respondent, throughout the hearing the Complainant was unable to provide any satisfactory explanation as to why these discrepancies occurred except to maintain that she had not been properly trained in how to submit this information to payroll. Following the hearing, the Respondent dismissed the Complainant on with effect from 6th August 2017, stating, inter alia, in the dismissal letter, "the company has lost trust and confidence in your carrying out the role of Supervisor at X site and for this reason, it is my decision to summarily dismiss you on the grounds of Gross Misconduct." The Complainant appealed this decision and an appeal hearing took place on 2nd September 2017. The appeal was unsuccessful. In concluding, the Respondent, submits that the Complainant had been involved in a supervisory role on a number of assignments and had much experience in signing in books and submitting time-sheets. That the Complainant never provided any satisfactory explanation as to how her son had received payments for which he was not entitled to receive payment, including excess holiday pay. When the Complainant's son was written to and asked to come in to discuss the situation he immediately resigned. In direct evidence the Respondent state that they had asked the client about getting access to CCTV footage but they had been refused. The Respondent also submitted that the Complainant was afforded all due process and that her actions amounted to a serious breach of conduct as referred to in the company's Disciplinary Procedures.
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Summary of Complainant’s Case:
The Complainant submitted that her employment was terminated following on from a flawed disciplinary procedure which failed to afford her due process and fair procedure, that dismissal was a disproportionate sanction and that a lesser sanction should have been considered and imposed. The Complainant’s representative stated that the during the Complainant’s first three years as in a Supervisory position she submitted time-sheets and the sign-in book was unimportant. The Complainant emailed the completed time-sheets every two weeks. It was submitted that the sign-in book was not an accurate record of the times worked by staff because people were too-lazy to walk the five minutes it took to get to it. The time-sheets on the other hand did show additional hours worked. When additional work came up she would call on her son. And it was he who often did the additional hours. The Complainant submitted that her son had always been on the premises when she said he had been and that CCTV which could have supported this contention was never checked during the investigation. The Complainant also denied that there had been any deliberate falsification of documents; the only thing that had been shown was a discrepancy between the time-sheets and the sig-in book, which does not prove that there had been any deliberate falsification. The Complainant submitted that the punishment was disproportionate and that she should have been issued with a warning rather than have been dismissed. In direct evidence, the Complainant denied her son had not resigned because he was contacted about the situation but rather because had got work elsewhere.
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Findings and Conclusions:
S6(4)(a) of the Act states without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee. In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice. I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal. As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned" In this case, the Respondent, having carried out a thorough investigation, was of the belief that the Complainant was guilty of Gross Misconduct and having considered the evidence adduced at the hearing I do not think the Respondent was unreasonable in coming to such a conclusion. Several serious "discrepancies" were found in the time-sheets which lay at the feet of the Complainant; trying to blame a lack of training for such discrepancies does not hold up to scrutiny. At the hearing the Respondent demonstrated that the Company's Disciplinary Procedure was followed and that the Complainant had been afforded all due process. I therefore find that this dismissal was reasonable and that fair procedures were followed.
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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.
I find the complaint of Unfair Dismissal fails.
CA-00016270-002 Claim under the Terms of Employment (Information) Act 1994
Summary of Complainant’s Case:
In her Complaint Form the Complainant submitted that there were changes to her Terms and Conditions and her job description that were not given to her in writing.
In direct evidence, the Complainant submitted that her contract was that of a cleaner, not a Supervisor but she received no training from the Respondent Company; that her Training Record was blank. There was a great expectation that she would take on supervisory/management roles but she was never trained for these roles. This lack of training prevented her from fulfilling her role properly, and any breakdown in fulfilling her role was due to this but there was no deliberate attempt to falsify documents.
Summary of Respondent’s Case:
The Respondent submitted that the Complainant had failed to identify exactly what changes she was referring to in this instance. It is the Respondent’s case that although the Complainant's duties may have changed from time to time there was no material change to her Terms and Conditions of Employment.
A witness for the Respondent, who was Operations Manager for the Complainant's site, gave evidence that training had been provided for the Complainant and that her previous experience was such that the Complainant had the skill set required to perform the Supervisory role.
The Operations Manager stated, in response to questioning, that when the Complainant started working in her last site as a Supervisor she was not issued with a new job description, a new or updated contract or letter of appointment.
Findings and Conclusions:
I find that the Complainant was not issued with any written confirmation of her role when she moved to a Supervisory role at her new site. Although I do not think this failure impacted significantly on her work, it should nonetheless have been done; she should have been issued with something in writing to reflect this change.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Respondent has breached Sec 5 of this Act.
I order the Respondent to pay the Complainant €400 compensation within six weeks of the date below.
CA-00016270-003 Claim under the Employment Equality Act
Summary of Complainant’s Case:
In her Complaint Form, the Complainant submitted that she had been discriminated by reason of her age by discriminating against her in giving training.
The Complainant stated that because of her age she should have been given more guidance and training. The Complainant could not identify a Comparator.
Summary of Respondent’s Case:
The Respondent submitted that the Complainant had failed to establish a prima facie case and had not identified a comparator. In any case, the Respondent submitted that the Complainant did receive training which she put into use both in the last site and previous site where she worked for the Respondent.
Findings and Conclusions:
Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
I find that the Complainant has failed to adduce any evidence which indicates to me that she was discriminated against on the age ground. Therefore, she has failed to establish a prima facie case required to shift the burden of proof.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The complaint fails.
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Dated: 06/09/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Time-sheets, discrepancies, gross misconduct. |