Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00021474-001

29/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969(withdrawn at hearing)

CA-00021475-001

29/08/2018

This case refers to a claim submitted under the Industrial Relations Act, 1969. The Claimant who presented his own case had submitted his high level of dissatisfaction with the Employer response to the events preceding his dismissal.

This case was first listed for January 18, 2019, where neither party made an appearance. Almost immediately post hearing, the claimant admitted that he had mistaken date of hearing and sought a resumption. I wrote to the Employer on January 21 and informed the company of my intention to resume the case and indicated that I was looking forward to meeting the Employer on the resumed date.

The Hearing resumed on 27 February and neither party appeared. This was a misunderstanding and the case was relisted for 5 March 2019, where the claimant was the sole participant at hearing.

A letter filed by the Employer dated 25 February 2019 followed and was exchanged with the Claimant.

The Claimant reviewed both claims received by the WRC and agreed they were identical and elected to proceed with CA -00021474-001 and withdrew CA-00021475-001.

The Claimant, a Technical Support Officer was employed from 22 November 2017 to the date of his dismissal for gross misconduct on 13 August 2018. He worked full time for €1,350.90 nett per month.

The Claimant outlined that a New Call system was introduced on which he received 15 minutes of training. Only one member of staff was conversant on the system. He felt under pressure. Daily statistics were recorded by Mentors and the Team Leader. He recalled that he had progressed through his informal probation. He had been spoken to in respect of being late and the matter had resolved.

He recalled noticing something unusual on the Call system during July 2018. He was used to a fast-paced sequencing of calls and on this occasion, he finished a call and did not receive further calls for 15-20 minutes. He passed this occurrence to his Team Leader who was standing behind him, but no action followed.

This did not impact on the claimant’s performance as the statistics remained elevated. He used the lull in calls for personal time as he had felt stressed by the job and the low moral on the floor.

He arrived to work on August 8 and ran straight into two company representatives who presented him with a manual report citing 61 instances of after call lulls. The claimant was asked to explain. He apologised for taking “breathers “and equated these occurrences with teething problems on the new system. He was notified that he was suspended on pay pending further Investigation.

He attended a Disciplinary hearing two days later, Friday, August 10, where he submitted that the Team Leader, to whom he reported “the glitch” first day could have sorted it out. In addition, the Employer had access to real time analysis and they were not obliged to wait to build up a dossier on missed calls.

On the following Monday, the claimant received an email signed by Human Resources which confirmed that he had been dismissed for gross misconduct.

The Claimant appealed the decision the following Friday, he submitted that he was unaware that Call avoidance amounted to Gross Misconduct on his contract of employment. He submitted that dismissal was a disproportionate response and the decision to dismiss did not take account of the teething problems on the new system. He had wanted to bring a representative at the early stages but could not find one. He eventually found a representative via Social media. He believed that the decision to dismiss him was pre-meditated and he had not been heard. The decision to dismiss was upheld.

The Claimant confirmed that the Employer had undertaken the Disciplinary procedure in the correct order but apart from this was procedurally unfair.

He had asked for a second chance and tried to get buy in for a proposal to rework the time lost but was informed that the company does not work that way. He tried to raise instances where other people had been treated differently at the company but was stuck down on those points.

The Claimant confirmed that he had attended a 1-day Induction where Disciplinary Procedures were verbally discussed but he recalled that the discussion was prefaced by stages of the procedure in advance of termination of employment. He stated that he had not been given a copy of the Disciplinary procedure as the Employer told him that it was contained in the Employee portal.

The Claimant submitted that he believed that he was unfairly treated in the run up to and during his dismissal process. He has found new work but remains troubled by the injustice he experienced at the Employer company. He sought an adjudication on this process.

The Employer did not attend any of the scheduled hearings. By way of email dated February 25, the Employer filed a response to the claim from their Human Resource Department and disputed the claims.

They submitted that the claims were identical. That the claims were not lodged under the Unfair Dismissals Act and provided a chronology where the claimant was first suspended, then subject to a Disciplinary hearing which led to his dismissal on 13 August 2018. The Employer wrote that the claimant had been offered Representation and that the Employer had acted in a fair and reasonable manner. They would not be attending the hearing in the case.

There was no further correspondence.

This case has been entered to seek a procedural framework review of a dismissal following discovery of an allegation of 61 missed calls in a Call Centre over a weekend period. I requested all documents on which the claimant chose to rely, but do not have the benefit of the email confirming either the dismissal or the Appeal Outcome. I have not had the benefit of the Company Procedures as the claimant submitted that they were now out of his reach and he had not received copies during the disciplinary Investigation.

The Employer in the case did not respond to the initial invitation to attend the WRC. Potential Respondents are provided with an opt out clause if they register an objection to participation under the Industrial Relations Act within 21 days of notification. When an Employer fails to answer, it is presumed that attendance at hearing will follow. The Employer first came on notice in this case in a response to my letter signalling a relisting of the case in the immediate aftermath of the first day of hearing. This letter from the Employer indicated that the company would not be making an appearance in the case. This is regrettable. Any worker is entitled to access the WRC services and it is always helpful for balance, equality of arms and Investigative purposes that both worker and employer attend.

In the Irish Studies in Management book on Irish Industrial Relations in Practice,1997, edited by Thomas V Murphy and William K Roche, Mr Murphy dedicated an informative chapter to the Resolution of Industrial Disputes.

“The rules which regulate the relationship between employee and works may be either substantive or procedural in content. Substantive rules are those which establish norms or intentions in the form of specific conditions of work, such as pay, staffing, work arrangements and rules of attendance and nonattendance. Procedural rules deal with method rather than substance; they describe the arrangements by which the parties negotiate the substantive rules and also the machinery through which differences between the parties will be resolved. These differences may emerge during the negotiation of the rules or in their administration, that is their application, interpretation and enforcement by management.”

In the present case, I have heard only from the claimant. It is therefore difficult to investigate the dispute as presented.

I have considered the documentation presented by the Claimant which is undisputed by the Employer. The Claimant stated that he had an uneventful probation period outside an issue of lateness which resolved. Therefore, I can safely conclude that the claimant had a clean record when the new Technology was installed. By chance, he discovered a glitch in the system which offered him a rest from sequential calls. He stated that he mentioned this glitch to his seniors but did not state that he sought it to be fixed. By his own admission, he benefitted from some much-needed personal time afforded by the “glitch “and his entire case rested on the assumption that this act did not place him in the “red zone” of Gross Misconduct.

I have some concerns on this viewpoint. The claimant was not a first-time employee and ought to have had an awareness that company time had been eroded by him and contact time lost. He submitted that his rest period did not have a knock-on effect on company statistics and he maintained his high-performance rating throughout. He also claimed a high level of stress at work because of the new technology and low morale around him. I find that the claimant ought to have raised these issues either informally or formally with his seniors.

However, based on the claimants account of August 8, I formed the impression that the approach adopted by the company appeared radical at first glance. I noted that the issue travelled to a high paced formal intervention omitting an informal approach. The Claimant was placed on paid suspension without reference to a linkage between his actions and Gross Misconduct. He was assured by letter that he would benefit from a full investigation, yet I could not establish an Investigative document. The Claimant stated that he had merely been provided with the 61 instances of dropped calls. This does not appear to have constituted an Investigation in line with natural justice.

I read a brief description of the Disciplinary Procedure mentioned in the Contract of Employment, it stated that the procedure was not contractual and detailed broad outlines of purported misdemeanours which lacked specifics. I note that the claimant was not provided with a Disciplinary Policy during the activation of the Disciplinary procedures. I found this to be an omission. I appreciate that Employee Portals host many policies but given that the invitation to hearings and notification of suspension were raised in paper format, provision of the Policy in paper format should have followed also.

I found the procedural progression in this case to be very very swift. The Claimant was suspended on 8 August (Wednesday), The Disciplinary Hearing held on the 10 August (Friday) and the dismissal confirmed on 13 August (Monday) The Appeal was heard later that week. The claimant was paid in lieu of notice and did not sign a compromise agreement.

I found that the claimant underrepresented his reality at the Formal Hearing on August 10. The notes do not reflect his submission of his personal difficulties active at the time of the “calls glitch”. I would suggest that the claimant reflect on this as a missed opportunity in his own case. I also noted his reliance on naming other parties at senior level as collateral for his omissions. I would also like him to reflect on this.

This were reflected more in the notes of appeal maintained by his Representative.

In the absence of the Company Disciplinary Procedure, I have reviewed S.I 146/2000 the statutory code of practice on Disciplinary Procedures which outlines the general principles of natural justice and fair procedures to include

1 The Employee grievances are fairly examined and processed.

2 Details of any allegation o complaints are put to the employee who is to be given the opportunity to respond fully

3 Right to Representation

4 Right to a fair and impartial determination of the issues concerned, considering representation, evidence, factors or circumstances.

I have not received the benefit of the Employers deliberative process prior to the decision taken to dismiss. The dismissal was not disputed in the Employer document. Instead, it stressed that the claimant was not taking a case under the Unfair Dismissals Act.

I have reflected on this stand. To lose a job at any stage of employment must be regarded as a very serious matter. The Claimant had passed his probation and while struggling silently with stress levels, he intended to stay with the company. In a detailed review of the meeting notes, I detected a large volume of pre-determined statements of judgement in the case. It seemed that a discretion to consider the case on its own merits was not available to the decisions makers who came to the table with stock phrases on company impact. I found that insufficient weighting was given to the claimant’s submissions and crucially, he was not participant in an Investigation report which appears to have resulted in the termination of his employment.

While I accept that this case is not filed under Unfair Dismissals Act, the Employer still has a duty of care towards the claimant as an employee under the umbrella of what is fair and reasonable. I have found that both employee and employer had a joint responsibility to discuss this situation informally in the best interest of a shared resolution short of activation of the Company procedures which ended in the nuclear option of dismissal. I could not establish whether the installation of new technology was a weighted consideration in the outcome of the Disciplinary action?

Gross Misconduct is a stark allegation. I have not received any collateral on what informed this allegation. I would have welcomed an expansion from the employer on the rationale for leading with this charge which was not flagged from the outset.

I found that the claimants latter day offer to repay the hours was unfairly refused.

Based on the case as presented, I must find that the claimant was unfairly treated and seemed to have been overwhelmed by a Corporate approach which did not have an inbuilt facility for compassion, informal resolution or to hear the claimant in his own case.

I accept that the claimant is still highly troubled by the circumstances of his dismissal which he fears will have long term consequences for his employability. I could not establish if the Employer gave any consideration to the possible impact of a summary dismissal on a vulnerable worker. I accept that the Employer discovered a serious variation in practice, however, this did not justify the void in the procedural framework which followed.

I have found merit in this Dispute and find that the claimant was treated unfairly and unreasonably in the face of an allegation of “call avoidance” over a 3-day period in August 2018

I was disappointed that the Employer chose not to attend the hearing to allow the procedural framework of the dismissal to be externally reviewed in their presence. I am satisfied that the company was given every opportunity to attend the hearing .

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found merit in this Dispute. I have considered Recommendations open to me to make in the case and I have decided on the following approach.

I have found that the Dismissal on grounds of gross misconduct was precipitous, unfair and unreasonable due to the clear variance in a fair procedural framework and lack of recourse to lower grade sanctions .

I recommend that the Employer reflects on this decision and offers an apology to the claimant for the treatment he experienced at the Company. I would also recommend that the claimant reflect on his own contribution to the events which surrounded the “glitch”.

I would recommend that the Employer review the Disciplinary Policy to incorporate the principles cited in SI 146/2000 and issue a paper copy of this Policy on any activation into the future.

Finally, the claimant has not pleaded a loss of earnings in the case, however, the variances in a fair procedural framework have clearly caused him distress. I recommend that the Employer presents the claimant with 2x Shopping Vouchers totalling €1,000 over two 6-month instalments in respect of the distress caused.

Dismissal during the first year of employment.