Complainant

Respondent

Anonymised Parties

A Seamstress

 A Clothing Alteration Service

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00022258-001

29/09/2018

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

CA-00022258-002

29/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00022259-001

29/09/2018

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

CA-00022259-002

29/09/2018

The Complainant commenced employment with the Respondent, a clothing alteration service company, on 25 January 2017, in the role of a seamstress. The Complainant’s employment was terminated on 24 March 2018.

The Complainant submitted her claim for unfair dismissal, under the Unfair Dismissal Act, 1977, to the Workplace Relations Commission on 29 September 2018. The Complainant also submitted a claim for a Minimum Notice.

The WRC received two submissions of the Complainant’s complaints, which were referenced under CA-00022258 and CA-00022259. As CA-00022259 was a duplicate complaint, the Complainant was advised by the WRC that both complaints had been amalgamated and would proceed under CA-00022258 and ADJ-00017175.

Background:

The Complainant submitted that, arising out of a conversation with her supervisor, on 21 March 2018, in relation to productivity/duties, she received an email from the director of the Respondent (Mr A) on 22 March 2018 advising her to take a paid day’s leave, while he considered his decision with regard to the serious incident which occurred on 21 March 2018.

According to the Complainant’s submission, she received a letter from Mr A on 24 March 2018 advising that her employment was being terminated with immediate effect.

Substantive submission:

According submissions made on behalf of the Complainant, issues arose in the workplace in relation to productivity/targets.  The Complainant stated that when she did not reach daily targets, the shortfall was added to the next day’s target and, despite having to work up to 10 hours a day to reach the target, she was only paid for eight hours per day. According to the Complainant, her contract of employment makes no reference to productivity or targets.

It was submitted, on behalf of the Complainant, that the facts in relation to the incident on 21 March 2018 are in dispute. According to the Complainant, matters only started to arise when she realised her employer was not acting fairly and requested her legal rights, as an employee, to Bank Holiday pay for the St Patrick’s Day weekend and her right to decide when to use her annual leave. However, according to the Complainant, she was then accused of being verbally abusive and was dismissed.

In support of her contention that the Respondent did not act reasonably and failed to follow good practice in relation to her dismissal, the Complainant made the following points:

·         The complaint was not put to her in sufficient and appropriate detail.

·         The Complainant was not made aware of all the allegations and complaints that formed the basis of the dismissal. The two complaints from colleagues, dated 22 March 2018, were never presented to the Complainant either before or after her dismissal.

·         There was no proper investigation.

·         The Complainant did not have an adequate opportunity to deny the allegations or explain the circumstances of the incident before the decision to dismiss was taken. In this regard, the Complainant submitted that Mr A was dealing with this matter via phone and emails, which were being translated through Google Translate. According to submissions on behalf of the Complainant, given her basic proficiency in English, this was a very inappropriate way to conduct the matter.

·         The Complainant was not afforded the opportunity to have appropriate representation.

·         Sufficient time was not taken by the Respondent in considering the dismissal, with the incident occurring on 21 March 2018 and the dismissal advised on 24 March 2018.

·         There was no disciplinary meeting.

·         Both the investigation and disciplinary processes were conducted by Mr A, which resulted in there being no appropriate separation between the processes.

·         The Complainant was never informed that the disciplinary process could result in her dismissal.

·         The dismissal decision was sent to the Complainant by email and did not contain any information on the right to appeal or how to exercise these rights.

·         The dismissal letter cites “verbal abuse” as the reason for dismissal, yet this is not listed as gross misconduct in the Complainant’s employment contract.

·         The Respondent did not follow the disciplinary procedures.

·         When the Complainant received her file from the Respondent, on the basis of a Data Access request, she discovered that the Respondent was claiming to have given her a verbal warning in December 2017. The Complainant claims to have been unaware of this until she received the documentation on foot of the data request.

With regard to her claim for Minimum Notice, the Complainant submitted that when the Respondent offered to pay her a week’s wages in lieu of notice on 23 October 2018, she was not comfortable providing her bank details, given the unfair treatment she had experienced. However, according to the Complainant, the Respondent could have posted a cheque to her but did not do so.

Conclusion:

In conclusion, it was submitted on behalf of the Complainant, that the Respondent’s behaviour was neither fair nor in compliance with the law or its own policies. It is further submitted that neither the principles of natural justice nor the Code of Practice on Grievance and Disciplinary Procedures were followed by the Respondent in the conducting of the disciplinary process.

Based on this, the Complainant submitted that she was unfairly dismissed and requested a favourable decision in this regard. The Complainant is seeking compensation as her preferred method of redress.

The Respondent submitted evidence in relation to an incident that took place on the company premises on 21 March 2018, which involved the Complainant being verbally abusive towards two colleagues. One of those individuals, the shop manager, provided direct evidence, at the Oral Hearing, in relation to the incident.

The incident was brought to the attention of the Respondent’s Director (Mr A), who provided direct evidence in relation to the incident and the process which he undertook as a result. According to Mr A’s evidence, he requested the three people involved, the Complainant and the two colleagues who had witnessed the behaviour, to provide personal statements in relation to the incident.

Mr A further stated that, as the Complainant was roster off on the day after the incident (22 March 2018), he also requested her to take the following day (23 March 2018) off with pay, while he dealt with the matter. According to Mr A’s evidence, due to the language barrier that existed, the process was conducted primarily through email, using Google Translate as the means of translating the respective correspondence that passed between the parties.

According to Mr A’s evidence, the Complainant was already on a verbal warning as a result of an incident which took place on 20 December 2017. This warning was still active at the time of the incident on 21 March 2018. Mr A stated, in evidence, that having carefully considered the seriousness of the incident on 21 March 2018 and in the context of the existing verbal warning for the December 2017 incident, he considered there to be a pattern of aggressive language and behaviour displayed by the Complainant towards her colleagues.  On that basis, the Respondent submitted that he felt he had no option but to terminate Complainant’s employment on the basis of gross misconduct.

The Respondent further submitted that this was the first such incident in the history of the business and there is usually a good atmosphere throughout the business.

CA-00022258-001 – Unfair Dismissal:

The Complainant was dismissed by the Respondent on the basis of gross misconduct relating to an incident which took place on 21 March 2018.  The Complainant’s contract of employment was terminated, with immediate effect, on 24 March 2018.  Subsequent to the Complainant submitting her claim of unfair dismissal to the WRC, the Respondent conceded that the Complainant was entitled to one week’s notice in relation to her dismissal.

Applying the provisions of Section 1(b)(ii) of the Unfair Dismissal Act, 1977, the actual date of dismissal, in the within case, would be 31 March 2018. The Complainant’s complaint was submitted on 29 September 2018, which is within the required six-month time period, as set out in Section 8 (2) of the Act.

Therefore, on that basis, I proceeded to consider the Complainant's complaint relating to her dismissal, as set out below:

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…..(b) the conduct of the employee….”

Section 6 (6) of the Act states as follows:

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

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show the fair process and procedures were applied when conducting the disciplinary process.

With regard to the within case, having reviewed all of the evidence adduced, I am satisfied that the incident on 21 March 2018 was of a serious nature, in particular taking into account the behaviour towards the shop manager, who was clearly impacted by the incident. On that basis, I am satisfied that the Respondent had good grounds on which to consider the matter as being of appropriate gravity to require being dealt with through the Disciplinary Procedures.

However, notwithstanding the fact that the Respondent may have had reasonable grounds, based on the Complainant’s conduct, to consider termination of the employment, there is an onus and responsibility on the Respondent to ensure that fair process is applied in reaching that conclusion and that the Complainant is provided with full access to an appropriate procedure which recognises and protect her rights in this regard.

It is well established in case law that when conducting a disciplinary process, particularly where there is potential that a serious sanction, including dismissal, might apply, the employer is required to demonstrate that fair process and procedures were applied when conducting the disciplinary process.

In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

With regard to the case in hand, the Complainant presented compelling evidence in relation to the disciplinary process which clearly indicates that she was not provided with a fair or reasonable process in the investigation of the serious charge of gross misconduct.

The Complainant’s evidence clearly shows that the entire process was managed and conducted by the Respondent’s Director, (Mr A). A significant body of case law exists with regard to the issue of the separation of the investigation stage from the disciplinary decision-making process in the context of providing fair procedure, particularly in a process that results in the termination of an employee’s employment.

In Joseph Brennan Bakeries v Rogers (UDD1821), the Labour Court stated:

“The Court considers that the multiplicity of roles undertaken by TG [ the General Manager] in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw the procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that the within enterprise is of a nature which afforded the Respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by the selection of available management level personnel to carry out the different stages of the procedure.”

The circumstances pertaining to the role of Mr A, in the within case, are very similar to those set out by the Labour Court above. I accept that the nature of the Respondent’s organisation may present some challenges in accommodating the separation of roles as envisaged in the above Labour Court decision and, perhaps, may have supported the combining of the investigation/disciplinary hearing to some extent. However, in such circumstances, it would then be imperative that an appropriately independent, objective appeals process be provided, which might allow any defects or issues with the earlier process to be remedied. Consequently, in the within case, the Respondent’s failure to provide the Complainant with an opportunity to appeal can only be viewed as a very significant absence of fair process.

Taking all of the above into consideration, I find there to be significant procedural flaws and failures in the processes which led to the Complainant’s dismissal. Consequently, I find that the Respondent, on a number of levels, did not provide the Complainant with a fair procedure and, therefore, I find that the Complainant’s claim of unfair dismissal is well-founded.

However, notwithstanding the above finding, I am satisfied that the Complainant’s conduct, as it applied, in general, but, in particular, with regard to her behaviour during the interactions with her manager and colleagues in March 2018, which can only be considered as inappropriate and unacceptable in the circumstances, was a very significant contributor to her dismissal and had she demonstrated more restrained behaviour in the circumstances her employment may not have been terminated.

Furthermore, I am satisfied that the Complainant had a live verbal warning on her file at the time of the March 2018 incident. That verbal warning had been issued for similar conduct as was displayed again on 24 March 2018.

Therefore, I can only conclude that the Complainant played a significant role in her own dismissal and the only reason I am finding in favour of her claim for unfair dismissal is because of the Respondent’s failure to provide reasonable and appropriate process in arriving at and implementing the decision to dismiss.

When considering redress, which is by way of compensation, I have, in line with Section 7 (2) (f) of the Unfair Dismissals Act, as amended, factored in the extent to which the Complainant contributed to her dismissal.  The calculation of the compensation to be awarded also takes account of the fact that the Complainant commenced alternative employment on 15 August 2018, albeit on a slightly reduced salary, and that she was unavailable for work due to sick leave for a significant portion of the period between her dismissal and taking up her new employment.

CA-00022258-002 – Minimum Notice:

With regard to the claim for Minimum Notice, I note that the Respondent had previously conceded on this point by offering to pay a week’s notice. However, due to the Complainant’s failure to provide bank details, no payment was made in this regard.  Clearly, in that context I find that the Complainant’s claim for minimum notice is well-founded.

Having carefully reviewed all of the evidence adduced and in the context of the Findings/Conclusions, as set out above, I set out my decisions in relation to the Complainant’s complaints, as follows:

CA-00022258-001 – Unfair Dismissal:

I find that the processes applied by the Respondent which led to the sanction of dismissal in this case lacked the necessary and appropriate standards of fairness and natural justice, which are required in such circumstances.

Consequently, I find that this was an unfair dismissal and is, therefore, in breach of the Unfair Dismissal’s Act, 1977.

Based on the above decision I award the Complainant €1,500.00 in compensation.

CA-00022258-002 – Minimum Notice:

I find that the Complainant’s claim for Minimum Notice is well-founded. Therefore, on that basis, I order the Respondent to make a payment, if not already paid, of €384 to the Complainant in respect of notice. This payment is subject to the normal statutory deductions relating to pay.

Unfair Dismissals Act

Minimum Notice & Terms of Employment Act