ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00018374

Parties:

Complaint(s):

Date of Adjudication Hearing: 22/02/2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1946 – 2015 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

The Complainant has been employed in the Carnegie Arts Centre as Arts Administrator from 15 January 2018 up to 17 September 2018. The Complainant was being paid via CE Scheme on a placement. The Complainant was dismissed from her employment as a result of the issue she had faced with the Respondent which was not fairly handled.

Summary of Complainant’s Case:

The Complainant was being paid via CE Scheme on a placement. The Complainant was working in Carnegie Arts Centre from 15 January 2018 to 17 September 2018. The Complainant left work as she was told to leave “go up home”. Tus placed her in another work environment as a result of the issue which she had with her manager.

There were no issues up to September by any member of staff as far as the Board were aware. The Board became aware of the issue that occurred on the Monday that the Complainant had left and that an incident had occurred between the Complainant and the Respondent.

The Complainant states that on 6 September she carried out her work to perfection and locked up. The following day the Respondent arrived into work and asked about the previous night. The Complainant stated that all was fine and informed her of how many people called in and stated where the envelope with the money was kept.

The Respondent stated “oh but everything is not fine, you left the screen 6 inches down from the ceiling”. The Complainant stated “oh god, I didn’t know, did you put it up?”. The Complainant states that the screen automatically goes up and stops automatically when it is fully up. The Complainant states that they do now know why she would have stopped it there as it usually stops itself when completely up. The Respondent stated that it is not the point because someone could come in with a ladder and break the screen. The Complainant stated that she looked at the Respondent and smiled and said “I really think you are over reacting”. “Usually whoever is using a ladder would surely look first to see where they are putting it”. The Respondent stormed off and mumbled over her shoulder “I don’t think I’m over reacting”.

On 13 September, the Complainant was working a late shift and it was film night. When the Complainant arrived into work she was called over to the computer by the Respondent who stated she would go through all of the things that the Complainant had done wrong. The Complainant had uploaded one image to the website the previous day which the Respondent did not like and wanted it changed. The Complainant stated that this was not a problem and she would correct this when she got a chance later that evening. The Respondent then outlined an (_) which was put on the title of an event which should not be there and the Complainant was told not to do it again.

The Complainant stated that she would omit it from now on but told the Respondent that she had told her to do it like that. The Respondent stated that she had never told her to do it like that way. The Complainant checked with two other employees and they stated that they do it the exact same way as was told by the Respondent. The Complainant also checked back on archived events and the ‘_’ is on them dating back to 2016. The Complainant states that no one sees this particular title with/without the _ just staff that are looking directly at the computer. It does not appear on a ticket or anywhere just on the screen. The Complainant set up all events for that evening without the _.

The Respondent had asked the Complainant to confirm with the guys who were in the sound room before they left that everything was ok up there and to ensure that they had pulled nothing out. The Complainant checked with them and they stated that everything was fine. The Complainant went up to the sound room some time later to check the film as usual. The Respondent was in the office next door and when she heard the Complainant she charged into the room and in a horrible tone of voice shouted “did you ask them”?

At the time the Complainant was over on the right hand side of the room turning on the switches and before the Complainant could answer the Respondent started roaring ‘I told you to ask them bla bla bla’. At this stage the Complainant had forgotten about the lads who were carrying out work in the sound room as this was much earlier this day. The Complainant was taken so unaware and could not think straight. The Complainant said “what are you on about now?” The Respondent responded “how dare you speak to me like that” and the Complainant said “listen to yourself the way you speak to me, as if I’ve done something wrong. As a matter of fact I did ask them and they said everything was fine. Last week it was the screen 6 inches down from the ceiling, this week it’s an ‘_’ in the wrong place, plus all the nitty gritty things in between. What will it be next week?’ The Complainant said ‘can you see how utterly ridiculous you sound?’ The Complainant said that she could see that the Respondent was raging and she was red with temper. The Complainant went downstairs and the Respondent remained upstairs. Once the Complainant saw the two sound guys coming in again she went upstairs with them and asked them in front of the Respondent if she had asked them earlier on their way out if everything was ok in the sound room. One of the sound men confirmed that the Complainant had asked. The Complainant and the Respondent did not speak any further that evening.

The Complainant was off on Friday 14 and was working late on Saturday 15 and Sunday 16. The Complainant was working with the Respondent and another member of staff on both Saturday and Sunday. The Respondent was lovely on Saturday evening and said very little but was trying to say something nice every now and again. The Respondent told the Complainant that she was working on wine on both nights and that was fine. On the Sunday evening the Respondent had completed the floats which she usually would not do. The Respondent informed the Complainant to go over to the wine again. The Complainant set up the wine and looked at her float. The Complainant decided to count her float even though the Respondent had written what was supposed to be there. The amount was wrong. The Complainant brought the float over to the Respondent and asked her to check it again because what she had written down did not match up to what was included in the float. The Respondent did not answer her. The Complainant left it on the desk beside the Respondent until show time when she had to use it. The Complainant asked the Respondent again had she checked it and she replied sarcastically “I take your word for it that it is not correct”. The Complainant felt that the Respondent did not check it at all. The Respondent’s body language and facial expression was in direct contradiction with the words coming out of her mouth.

On Monday 17 September the Complainant was on duty until 4pm with the Respondent. The Complainant was at the desk selling a ticket to someone when the Respondent appeared. The Respondent stood staring in over the desk at the Complainant and looking at what she was doing. When the person left the Respondent went in and out of the back office banging things and stated that an electrician was coming in on Thursday and the place would have to be open. The Complainant did not say anything as she was going to be on holidays on Wednesday for a week.

The Respondent then shouted at the Complainant “did you hear that”? The Respondent was leaning forward over the Complainant’s should while she was sitting at the computer. The Complainant stated that she did hear but stated that she would not be around on Thursday and suggested writing in into the day book. The Respondent always states that the day book should be used and frequently writes in tasks to remind whoever is working on the days in questions. The Respondent had not told the Complainant to write anything into the day book and if she did she would have written it in.

The Respondent then shouted at the Complainant “what’s with the attitude!? ‘Pick up your bag and get out home’.

The Complainant said ‘excuse me, are you firing me’? The Respondent said ‘I don’t want you here’. The Complainant replied “You’re not my boss, you can’t do that, I’m going to report you”. The Respondent replied “Hu (grunt) good luck with that anyway”.

The Complainant went into the back office/kitchen and got her phone and called Employee A. The Complainant told Employee A the story while the Respondent stood staring and listening. Mary called into the office within minutes. Employee A and the Respondent went up to the office. A while later the Respondent came down and the Complainant went up to the office to Employee A.

Mary said to the Complainant that they can forget the whole thing and move on otherwise go through the proper channels to take the matter further. The Complainant stated that she was taking the matter further as the Respondent’s behaviour was outrageous and she was not putting up with it any further.

The Complainant also stated that she was not letting the other girls in the office down as they were also putting up with this behaviour. The Respondent told Employee A that the Complainant was an excellent worker and as a result the Complainant fails to understand what her problem with her is. The Complainant felt that maybe when she talks to the Respondent about best practices at work that it shows her up in her inadequacies. When Employee A and the Complainant were finished talking Employee A stated that the Respondent told her to let her know when they are coming down the stairs. When the Complainant asked why, Employee A smiled and said that “we might frighten her”.

The Board met on 1 October 2018 and the minutes from the board meeting state that the matter was being investigated.

The Chair of the board met with the CE Scheme Manager on 1 October 2018 and they had received the letter of complaint. The CE Scheme manager showed the Chair the letter of complaint but did not give the letter to him. The letter was written by the Chair of the Board to the Complainant’s manager who was looking after the CE scheme to say after their meeting as he had asked informally about it to the Respondent and two other CE workers earlier that day.

At the next board meeting on 7 November 2018 it was confirmed that the Complainant had left. The WRC claim came to the Respondent in writing on 5 December 2018 and this was discussed in the December board meeting.

After 12 December they received a copy of details of the complaint which they had already seen.

Summary of Respondent’s Case:

The Respondent states that the Complainant commenced her work placement on 15 January 2018. The Respondent felt that the Complainant had settled in well into her role and worked efficiently and competently. The Respondent states that she spent the summer training the Complainant on how to update the website. This freed up the Respondent’s time and allowed her to move to other equally important tasks. The Respondent felt that she worked well with the Complainaint and that the Complainant seemed happy and satisfied in her role. The Complainant stated that she had commenced a Wordpress course at the adult education centre and mentioned how she was enjoying it and how it related directly to her Carnegie web training. The Respondent had conversations with eh Complainaint along with work topics but also including fashion, recipe exchanges, spare time activities and discussions on the Complainant’s holiday apartment in Lanzarote. The Complainant had offered the use of her apartment to the Respondent if she ever required it.

On 5 September the Respondent stated that she gave a glowing report on the staffing situation at the theatre at the monthly board meeting. The Respondent stated to the team that everyone was working extremely well as a team and informed them they were as far ahead as Christmas with web updates. The Respondent felt that there was a great atmosphere in the workplace at this time.

On 6 September the Respondent was shocked when she was approached by the Complainant’s supervisor and asked how everything was at the theatre. The Respondent stated that everything was going really well and everyone was working well as a team. The Respondent mentioned that she had given a positive report the previous evening at the board meeting. The Complainant’s supervisors then stated that a complaint had been lodged by the Complainaint against the Respondent which left her completely astonished and taken aback.

The Respondent states that sometime during the summer she had introduced a system for balancing cash at reception. This consisted of a page whereby each event would be logged and balanced at the end of each shift. Tickets are sold for multiple events on any given day therefore it is important that the takings for each of these events are balanced at the end of each shift and signed off by the staff member on the shift.

Initially the Respondent felt that this idea was well received by all staff but gradually the Complainant began to protest that it was going to take too long and stated that she would have to close the door half an hour early in order to get time to balance and the Complainant continually ignored carrying out this task. The Respondent ignored this behaviour which I felt was an overreaction and left a note to say that this was obligatory and eventually the Complainant began to fill out the log.

On Friday 7 September the Respondent asked the Complainant to ensure when locking up after a film screening that the full size cinema screen was fully retracted before turning off the power. The Complainant had locked up the evening before and had left approx. 8 inches of the screen exposed. This could be open to damage when teams are putting up sets etc and using our full size ladders which was due to happen on 8 September by a team of technicians. The Respondent stated that the Complainant did not seem to have any problem with this instruction at the time.

On Thursday 13 September, the Respondent was on the same shift as the Complainant. The Respondent felt that the first sign of a problem was when she asked the Complainant to name a file in a particular way. The Respondent had asked other staff members to do the same. The Complainant’s reply was that it was overly fussy on the Respondent’s side and her tone was sharp. The Respondent felt that it was important for us all to use the same system as it would be easier going forward to retrieve the files from the archive when compiling reports, funding applications etc.

A film screening was taking place that night and normal practise is to test the film and technical equipment is working well ahead of the screening. The team were prevented from carrying this out until 5pm as the sound team from the theatre festival had agreed access until then. When visiting technicians are using the building it is crucial that all cables etc are put back as they were to avoid complications on our end. The Respondent went to work in the upstairs office and stated to the Complainaint that they would need to talk to one of the technicians before he left the building.

Sometime later the Respondent heard the sound of the fire proof metal shutter in the sound box beside the office. This is closed when the sound box is locked up for the night. The Respondent went to the sound box expecting to see the technician but instead it was the Complainant opening the shutter and was completely taken aback. The Respondent could not understand how everything had been shut down when they were continuing a screening that night and why the Complainaint had let the technician leave without checking the equipment as previously discussed.

At this point the Complainaint started to shout at the Respondent “Last week it was the screen that was not put back properly, today, it’s something else”. The Respondent stated that her tone was completely inappropriate and she said to the Complainant to go ahead and set up for the screening.

The Respondent left the sound box and returned to her office.

The Complainant then called the Respondent twenty minutes later from reception to state that the film was not working. The Respondent then attempted to set it up. The film has sound but no picture at this stage. The Respondent then proceeded to try out all the technical possibilities within her capabilities however after twenty minutes she stated that she was still in the same situation. The Respondent then tried to contact the technician or a member of the external sound team. The technician arrived back to the theatre and they fixed the problem one hour later. The Respondent states that this was the problem that she had foreseen and had hoped to prevent it as she had previously ran into this same difficulty in the past. The Respondent ran the box office with the Complainant and it was clear from her demeanour that she was angry. The Complainant did not speak to the Respondent at all and left the shift at approx. 8.30pm.

On Saturday 15 September the Respondent was working on the late shift with the Complainant and Employee B. The first sign of a problem was when the Respondent tried to speak with all of the team together before members of staff finished their day shift. The Complainant ignored the Respondent and snapped and became very angry when the Respondent called her. The Respondent stated that she continued to engage both in ordinary conversation through the evening. Sunday is a repeat of the same.

On Monday 17 September the Respondent is working on sift alone with the Complainant and states that she felt worried as she travelled to work. The Complainant’s energy at this point is volatile and unpredictable. The Respondent states that she has already decided to address the problem on this shift. The Respondent asked a volunteer to be in attendance for back up as she is not clear how busy she will be. The Respondent attempted to explain to the Complainant when she arrived on shift about the electrician who will visit the following day. The Complainant over reacts and says ‘Write it down why don’t you?’

“You’re always telling us to write it down”. The Complainant then takes the large hard backed diary that the team use to make notes for each other and slams it down in front of the Respondent.

The Respondent states “That’s a completely inappropriate way to speak to me and if you can’t leave this attitude at the door I need you to leave your shift”.

The Complainant states “Are you firing me?”

The Respondent stated no as she did not have that power. The Complainant then proceeded to call her manager to report the Respondent. The Respondent is relieved as both the Chairman and her Supervisor were on holiday and she did not have anyone to call upon.

The Complainant’s manager arrives to the centre and the Respondent offers her and the Complainant the office space for privacy which they do not feel that they need. The Respondent then meets with the Complainant’s manager in a private meeting room upstairs. The Respondent asks the Complainant’s manager if the Complainant can leave the building and return the theatre keys to her. The Complainant then meets with her manage in the office and following this conversation the Complainant gathers her belongings and leaves. The Respondent then proceeds to change the passwords on the computers to protect the organisation.

The Respondent states that she has always spoken to the Complainant with the utmost respect and has always ‘requested’ as opposed to ‘demanded’ when actions or tasks needed to be undertaken or training given. The Respondent states that she has never spoken to the Complainant in anger, even on the last extremely stressful shift in September.

Findings and Conclusions:

The actions of the employer in this matter fell very far short of accepted good practice in this area and constituted a failure in its duty of care to its employee.

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

A WORKER:

It must also consider if this employee meets the criteria of Section 23 of the Industrial Relations Act 1990 which details the description of “a worker”:

“In this Act (except Part VI) the word “worker” means any person of the age of fourteen years or upwards who has entered into or works under a contract with an employer whether the contract be for manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or an apprenticeship or a contract personally to execute any work of labour, other than

(a) a person who is employed by or under the State,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(d) an officer of a local authority,

(e) an officer of a vocational education committee, or

(f) an officer of a school attendance committee.

This is an important consideration because case law would consider the source of payment and source of control.

In addition I note that in accordance with the provisions of the 1969 Act it was open to the Respondent to object to a hearing of the claim under that Act investigated by an Adjudication Officer and prevent the claim from being heard or investigated by an Adjudication Officer and this did not happen in this case. Therefore I deem that the Complainant is entitled to have the claim under the Industrial Relations Acts heard and a recommendation issued.  

On commencing work no employees are given contracts or policies referencing grievance procedures or bullying as it is the employer’s assumption that this is carried out with the CE Scheme as they are CE workers there is not a requirement to give employees any paper work when they commence work. I would not concur with this. The employee raised a grievance after she was sent home from work.

No investigation formally occurred. It was stated that they were not progressing with the matter.

Even though the employee was paid via a CE Scheme her placement was with her employer who had direct control over her work. I refer to the High Court case of Tonya Martin v The Minister for Social Protection 2016, 225, JR [2017] (IEHC 361) presided by Mr Justice Binchy. This case confirms “There cannot be the slightest doubt but that the decision that was taken to dismiss the applicant from her employment by the Partnership was a decision taken by the Partnership was a decision taken by the Partnership itself and not the respondent. The mere fact that the Respondent has a significant oversight role in relation to the administration of the Scheme and provide funding for the Scheme”. Mr Justice Binchy also confirmed that “I am satisfied beyond any doubt that the decision that the applicant impugns in these proceedings is a decision taken by the Partnership and not by the respondent, and it is not a decision for which the respondent is in any way liable. While the respondent established and funded the Scheme, the responsibility for the administration of the Scheme, insofar as it concerns matters relating to the employment of the applicant, rested entirely with the Partnership and not with the respondent. That is clear both from the terms of the Tús implementation agreement, and the Tús community workplace initiative, conditions and rules. The applicant's employment was governed by the contract of employment which she entered into with the Partnership and not the respondent. While it is true that she was obliged to enter into this contract of employment in order to maintain her entitlement to Jobseeker's Allowance, that does not in any way alter the fact that her contract was with the Partnership. The respondent had no role in the day to day management of employees and indeed it would be utterly unrealistic to expect that it could do so.”

Decision:

Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.

I recommend that the employer going forward ensure that all employees receive full induction and relevant policies including grievance, disciplinary and code of protection of bullying and harassment to ensure dignity and respect at work. I would also recommend that as the relationship between the employee and employer seems irreparably damaged as the employee was redeployed to another CE Scheme therefore I recommend that they compensate the employee for failure to give her fair process by investigating the matter in line with the rules of natural justice to the sum of €1500 compensation.

Dated:   29th April 2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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