ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021170
Parties:
| Complainant | Respondent |
Anonymised Parties | Administrative Assistant | Employment provider |
Representatives |
| Michael McGrath IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00027813-001 | 16/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 | CA-00027813-002 | 16/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00027813-003 | 16/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00027813-004 | 16/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00027814-001 | 16/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 | CA-00027814-002 | 16/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00027814-003 | 16/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00027814-004 | 16/04/2019 |
Date of Adjudication Hearing: 24/10/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and Having conducted the Investigation as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation which will set forth my opinion on the merits of the within dispute.
The Complainant herein disputes the way in which a Disciplinary process and a Performance Improvement Plan were, she says, unfairly conflated.
The Complainant has additionally brought a complaint of having been penalised for raising her belief that the Employer is committing offences under the Consumer Protection Act 2007 and for having alerted the National Consumer Agency of this belief.
The Complainant has brought a claim that she was discriminated against by her Employer on the basis of her Family Status. She says that her Employer treated her unlawfully by dismissing her because she opposed the Discrimination which she says was being perpetrated against her.
Lastly, The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
Background:
The Complainant has brought a number of complaints and these were lodged by way of workplace relations complaint form dated the 16th of April 2019. It should be note that a number of documents were provided after the hearing and that these have been forwarded to each side respectfully. Nothing in particular turned on any such additional documents. |
Summary of Complainant’s Case:
The Complainant believes that she was unjustly dismissed in a process that did not allow her to Appeal a sanction that she felt had been imposed on her in the course of a Disciplinary. The Complainant has brought a number of other complaints under Employment Equality and Whistle-blower legislation. |
Summary of Respondent’s Case:
The Respondent was represented, and I was provided with a submission on the various complaints which have been made against the Employer. The Employer believes its Disciplinary process was correct and that an imposed PIP was unrelated. |
Findings and Conclusions:
I have carefully considered the evidence adduced. The Respondent Employer is an entity which has been engaged by the state (after a process of procurement) to provide a service wherein persons deemed to be long-term unemployed will be offered tailored support, training and guidance to assist them in the securement of full-time employment or self-employment (and I reference the Employer’s own web site in this regard). In general, a potential client will be assigned a personal adviser to help him or her through the processes and towards the objective of full-time employment. In and around September 2018 the Complainant applied for the position of “Host” which is the name given to the receptionist/general administrator expected to meet and greet and sit front of house at this place of work. I fully accept that the position was advertised to be bi-located at the Bray and Wicklow offices. This was particularly attractive to the complainant who lives in Wicklow. I have had sight of a fifteen-page Contract of Employment which indicates the primary place of work as Bray and that the Complainant would be on a six-month probationary period. The Complainant was to commence employment on the 24th of September 2018. I note that the Employee never signed this Contract but accept that at the very least it sets out the Terms and Conditions of the Employment as envisaged by the Respondent Employer. I note an email from the Complainant dated the 19th of October confirms an intention on the part of the Complainant to sign same. I note that the Complainant did raise the prospect of being paid a larger annual sum than that advertised but that this request was unsuccessful. I also note that she requested a shorter working week than the five-day week advertised by that this was rejected too. From the outset it seems the parties may not have been a good fit. One of the issues consistently raised by the Complainant was the issue of whether she had been given adequate or sufficient training in her new role. I note that there was some on-site shadowing of other hosts and that it was decided to send the Complainant to a two-day course set up for Personal Advisors so as to allow her to understand the work that is conducted by them in the workplace. The Complainant gave evidence that she did not think that she should have been sent on this training course as it was not specific to her Host duties, but I disagree with this as the Employer was giving her an opportunity to fully understand the Employer’s functions and objectives. I appreciate that the complainant was only notified of this two-day event at short notice and that it was difficult for her to organise her affairs so that she could be in Tipperary for the two days. I am not sure much would have turned on this tardiness had the Complainant not drawn attention to herself on an issue which I understand is very important to her, but which raised concerns with her Employer. At some point in the second day of the induction course the Complainant took issue with the fact that the Employer does not provide an equal service to long term unemployed people who are only available to work part time (as against full time). I understand that the complainant feels very strongly on this issue as she herself (I understood her to say) is a working Mother who was not always available to put in a 40-hour week. In her evidence, the Complainant has suggested that the Respondent is somehow operating to discriminate against people who have children or who have certain disabilities either of which reason might prevent them from working full-time. The Respondent on the other hand has made the case that in the procurement process, the State clearly obligated the Respondent to work with unemployed people to get them into full time employment. I was not notified of any service provider which tries to place persons into part time employment though have no reason to think that there is not such an organisation. I do understand that persons are randomly selected by the Department off the Jobseekers and if they are found to be appropriate candidates are sent on the Job Path employment activation scheme which is in turn provided by the Respondent or other similar providers across the country. This would suggest to me that there are some criteria to be met before an unemployed person will be sent to the Respondent and it may well be that being available for full time employment is just such a criterion. In any event, the point is that the Respondent has no control over the candidates that get sent to it by the Department of Social Affairs and Social Protection. The Respondent’s brief is to promote the prospect of securing full-time employment for those members of the long term unemployed that are sent to them. I do not accept that the Respondent in carrying out this task, is acting to discriminate against any particular class of potential beneficiaries. I can understand that the Complainant might raise the issue, but the answer to her questions lay outside the remit of this Employer, and she was advised of that fact in the course of this induction course. On balance, and having myself witnesses the complainant, I accept that the complainant may have come across as a little forceful which gave rise to offence on the part of those persons who were running the induction course. For the avoidance of doubt, I would also state that the Complainant whilst having empathy with others who may or may not be receiving discriminatory treatment, was not herself at any stage being discriminated against by reason of her family status. On her return to the workplace after this two-day event the Complainant was called to a disciplinary meeting to discuss her behaviour at the induction training as well as her timekeeping at the two-day event. Lastly, the complainant was to be asked about the creation of a part time jobs folder being kept by the Complainant at the front desk for potential jobseekers. The Investigation meeting was held on the 18th of October 2018. I have read through the notes of this meeting and subsequent meetings and whilst I accept that the Complainant offered a stout defence and reasoning as to why she brought up the issue of lone parents and other persons not necessarily available to work full-time, I do agree that she did seem to wilfully refuse to understand that this cannot be a concern of the Respondent . The outcome report was provided on the 26th of October and it contained an acceptance that the Complainant had not been given much notification of the induction course and her tardiness was as a consequence of that. The Complainant was found to have provided information without asking her Manager and lastly, the Complainant was found to have been disruptive at the induction course. The Respondent purported to put the Complainant on a four-week Performance review plan with her line Manager so that each week the Manager could go over the matters of concern provide support and require improvements. This was not seen by the Respondent as a Disciplinary sanction. I accept that Complainant’s interpretation that this performance review plan had all the hallmarks of a Disciplinary sanction and that she was correct in assuming that it could be appealed. Again, and again, the Respondent refused to accept that this was the case and persisted with the view that it was entitled to operate this Performance Improvement Plan even though it was created in the course of a Disciplinary process. The Complainant repeatedly sought a way to appeal this PIP to a higher authority, but this was never acceded to and although the Complainant did trigger a Grievance the outcome of that investigation only came long after the Complainant’s employment was terminated on the 8th of November following a formal probationary review. As I understand it, the Complainant’s complaint under the Industrial Relations legislations is that the Employer applied a disciplinary sanction as part of a disciplinary process and then dressed up the sanction as something else entirely (a PIP) so as to prevent the Complainant from exercising her fundamental right to appeal against the sanction and the disciplinary process which resulted in the sanction. In forcing the performance improvement plan, the resultant termination seemed almost inevitable. I find that I agree with the Complainant in this regard. The Respondent inexplicably failed to recognise the PIP for the clear sanction that it was. I cannot know if an Appeal process would have had the same outcome as the first stage of the Disciplinary process but the fact of not allowing an Appeal is a clear infringement of the principles of a fair hearing and fair play. In making any final decisions I must have regard for the fact that the Employment herein only lasted about seven weeks. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00027813-001 I find that the Complainant has been treated unfairly in the processing of a Disciplinary procedure which ultimately allowed the Employer to terminate the Complainant’s employment. I recommend that the Employer pay the sum of €3,000.00 to the Complainant by way of compensation. Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 CA-00027813-002 – This complaint is misconceived as the Complainant has offered no evidence that she raised issues with the Consumer Protection Agency for which she was subsequently penalised. I make no further decision. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00027813-003 – This complaint is misconceived as the Complainant has not made out the Prima Facie case that she herself was discriminated against by reason of her Family Status. I make no further decision. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00027813-004 – This complaint is misconceived as the Complainant was provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. I make no further decision.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00027814-001 - I make no decision as this is the same complaint as has been raised at CA-00027813-001 above.
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 CA-00027814-002 - I make no decision as this is the same complaint as has been raised at CA-00027813-002 above.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00027814-003 - I make no decision as this is the same complaint as has been raised at CA-00027813-003 above.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00027814-004 - I make no decision as this is the same complaint as has been raised at CA-00027813-004 above.
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Dated: 18/12/19
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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