UDD198

Background

The Complainant commenced employment as a cleaner with the Respondent in March 2006. His employment ceased on the 2nd September 2016. The Respondent’s position is that he was dismissed due to failure to perform his duties in line with the expected standards. The fact of dismissal is not in dispute.

Respondent’s case

It is the Respondent’s submission that there have been ongoing issues over a number of years with the Complainant in relation to his standard of work despite the fact that he has been fully trained by the Respondent. While the Complainant has demonstrated an ability to clean to the correct standard he appears unable to maintain that standard for any reasonable period of time. The Complainant was based in a hospital and part of his area of responsibility included operating theatres where there is no margin of error in relation to the standard of cleanliness required.

In October 2015 the Respondent initiated a disciplinary investigation regarding the Complainant’s poor standard of work. The outcome of that process was that the Complainant was given a written warning for nine months running from the 6^thNovember 2015.

In May 2016 following the Complainant’s unauthorised absence from work the disciplinary procedure was again invoked this time the Complainant was placed on a final written warning for a period of twelve months with effect from 9^thJune 2016.

In July 2016 a further issue arose in relation to the Complainant’s standard of work. In this incident the Complainant was responsible for cleaning an operating theatre. Following an audit by a member of the hospital team a number of issues were identified in particular some areas had not been washed, bins had not been properly cleaned and there was dust. The Complainant was given a copy of the Audit report and instructed to rectify the problems identified in the report. The Supervisor returned some time later to check and all the areas had been signed off by the Complainant indicating that he had completed the work. However, when the supervisor checked it was clear that the work had not been completed as instructed. The Disciplinary procedure was invoked the outcome of which was that the Complainant was dismissed. The Respondent put three witnesses who had been involved in the process into evidence in support of their contention that fair procedure had been followed.

Mr Nuno Ribeiro site supervisor in the employment of the Respondent in his evidence to the Court stated that he was asked by Ms Smidta assistant manager on the site to check if the issue raised by the audit in relation to the Complainant’s area of work had been rectified. Mr Ribeiro advised Ms Smidta that the issues raised had been signed off on but not rectified. Ms Smidta then asked him to carry out an investigation into the matter. Mr Ribeiro sent out a letter of invitation to an investigation meeting to the Complainant. This was a template letter and Mr Rineiro just inserted the middle paragraph setting out the purpose of the meeting which was to investigate issues arising from the audit and the Complainant’s failure to comply with his supervisor’s instruction to rectify the issues highlighted in the audit report.

In his evidence Mr Ribeiro informed the Court that he spoke to one of the Complainant’s supervisors immediately prior to the investigation meeting and that the same supervisor took the notes at the meeting. It was Mr Ribeiro’s evidence to the Court that in the meeting three allegations were put to the Complainant. The first allegation stemmed from Ms Smidta and arose from the Audit carried out. The second allegation arose from a conversation Mr Ribeiro had with Mr Mutia the Complainant’s supervisor in advance of the meeting and the third allegation came from the Complainant’s team leader. Mr Ribeiro did not speak to the team leader but was advised of the team leaders allegation in relation to work not being properly carried out by Mr Mutia.

Mr Ribeiro confirmed in his evidence to the Court that he decided to include the second and third allegations himself and that the Complainant was not notified in advance that these were going to be put to him nor was he given any documentation in relation to any of the allegations. It was his evidence under cross examination that he did not come to any conclusion in relation to the investigation process he just passed the minutes of the meeting on to Ms Smidta. Ms Smidta in her evidence to the Court confirmed that she had carried out the disciplinary meetings in relation to the absences and in relation to the work standards. She also confirmed that she had asked Mr Ribeiro to carry out the investigation in relation to the issues arising from the audit and that she had appointed herself to carry out the disciplinary hearing arising from same.

In relation to the final disciplinary hearing Ms Smidta in evidence to the Court stated that she came to the conclusion that there had not been any improvement in cleaning procedures and as the Complainant was already on a final written warning arising from his unauthorised absence dismissal was the only option. Under cross examination Ms Smidta told the Court that the disciplinary process in relation to absences related only to the block of absences between the 3^rdMay 2016 and the 13^thMay 2016. She confirmed to the Court that she had issued the letter of the 16^thMay 2016 noting all his absences from January 2016 until May 2016. She accepted that the letter stated that if his attendance did not improve he could face disciplinary procedure. Ms Smidta also accepted that this letter did not mention the requirement to provide documentation in relation to the May 2016 absence. Two days later Ms Smidta then asked Mr Mutia to investigate the absence. It was her evidence that the reason she did that was because the Complainant had not submitted any documentation in relation to his absence despite being requested on the 16 th May 2016 by Ms Smidta to do so.

The Representative for the Complainant brought the letter of invitation to attend the investigation meeting and the letter of invitation to attend the disciplinary hearing to Ms Smidta‘s attention and noted that both referred to a total absence of 18 days and not just the May absences. Ms Smidta then accepted that the disciplinary procedure was covering all absences in 2016.

It was Ms Smidta evidence that she only decided to invoke the investigation after she became aware that the Complainant had not produced any documentation in relation to his absence. Ms Smidta confirmed that template letters were generally used in the investigation and disciplinary process and that the relevant details are generally then inserted into the templates. It was Ms Smidta evidence that she wrote the letters advising of the sanction that would be applied and sent them to the HR Department, to see if procedures were correct but that she alone had made the decision in relation to the sanction on each occasion.

In relation to the final disciplinary process Ms Smidta confirmed that she had appointed Mr Ribeiro to investigate the issues. Initially she had asked him to check the theatre and put it in writing for the night supervisor. Ms Smidta did not know if Mr Ribeiro had spoken to Mr Mutia the Complainant’s Supervisor and or the Complainant’s Team Leader, but she knew about the issues as she had seen a note in the handover book.

Ms Smidta confirmed that the Complainant was not shown the handover book or the entry that was made in it in relation to his failure to rectify the issues raised by the audit. Ms Smidta confirmed that she had not given him a copy of the audit report that he was alleged to have signed and that she did not speak to him about the note. Ms Smidta accepted that the Complainant had on a few occasions raised issues about his work-load, but she had not followed these issues up with his team leader or supervisor. Ms Smidta could not confirm what section of the disciplinary procedure the Complainant was being dealt with under.

Ms Smidta accepted that the invitation to the disciplinary meeting dated the 24^thMay 2016 did not advise the Complainant that the outcome of the meeting could lead to his dismissal.

The final witness for the Respondent was Ms Angela O’Brien who is the contract manager and was tasked with hearing the Complainant’s appeal of the decision to dismiss him. In her evidence to the Court Ms O’ Brien stated that she had hoped that the Complainant would give some type of a guarantee that it would not happen again, but she did not believe he understood the seriousness of the failure to clean the theatres properly. It was Ms O’ Brien’s evidence that on that basis she upheld the decision to dismiss. In cross examination she gave evidence that she had not really reviewed the process that had taken place.

The Respondent in its submission makes reference to previous legal cases in particular the Judgment of Mr Justice Mc Dermott delivered on 16^thJune 2017 in the case ofEG v The Society of Actuaries in Irelandwhere it was held that the full panoply of natural justice rights, do not have to be applied in the course of investigations. It is the Respondents contention that the Complainant was in the main afforded fair procedure and that therefore the dismissal was fair.

Complainant’s case

It is the Complainant’s case that he was subjected to five different processes all of which were fundamentally flawed and all of which breached his right to due process and fair procedure. It was submitted by the Complainant’s representative that in a number of the processes Ms Smidta was the person making the complaint. Ms Smidta was the person who appointed an investigator and Ms Smidta was the person who carried out the disciplinary hearing in clear breach of the principle “nemo judex in sua causa”. The Complainant’s representative also pointed to the fact that Ms Smidta in her evidence confirmed that she did not know what section of the disciplinary code she was hearing the case under and that she relied on her previous knowledge from an earlier disciplinary process to come to the conclusion that dismissal was the only option. It is the Complainant’s contention that this was a breach of fair procedure.

The Complainant’s representative also drew the Court’s attention to what they believed to be a number of other failings in relation to the procedure. In particular the fact that the Complainant was not told who his accuser was, the complaints being investigated were added to without the Complainant being notified. Additionally, the Complainant was not given a copy of the audit report being relied on or a copy of the sheets he was alleged to have signed confirming he had carried out the work. The Complainant was not given any details of the additional complainants or any documentation in relation to same and issues that the Complainant raised in relation to his workload and in relation to instructions from his team leader and or manager were never followed up. This the Complainant argued all mitigated against the procedure being fair.

In relation to the last disciplinary process the Complainant’s case is that he was never told that it could result in his dismissal and it was his position that the appeal process was not a proper appeal process. The evidence of the person who heard the appeal was that she did not review the process that had been used she instead wanted the Complainant to give a guarantee that he would improve going forward. However, she could not say how that was linked to the requirement for a fair procedure.

The Complainant’s representative cited a number of legal cases in support of the contention that the decision to dismiss was unreasonable and fundamentally flawed. The representative also relied on the case ofFrizelle v New Ross Credit Union limited[1997] IEHC 137 where Mr Justice Flood set out a list of principles to be applies during a disciplinary process when an employee is to be dismissed. It is the Complainant’s case that the Respondent di not adhere to these principles. The final case relied on by the Complainant is the case ofDavid O’ Connor v Servie r(Ireland) Services Limited[2017] 28 E.L.R. 325 where the EAT found that failure to furnish the claimant with all documentation in sufficient time (or at all) was a “denial to the complainant of his right to any meaningful study of the evidence which grounded an accusation against him and was a serious breach of that employees fundamental rights”.

The EAT in that case also noted:

• “the process manager confirmed that the claimant was not provided with the statements from the individuals questioned as part of the investigation, which the Tribunal finds extraordinary”

The law

Section 1 of the Act defines dismissal in the following manner:

1. “dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)……

Section 6(1) states

“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 all the circumstances, there were substantial grounds justifying the dismissal.”

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

The Complainant’s case is that his dismissal was unfair as the decision to dismiss him does not meet the standard for fair procedure set out in the case law cited. The Respondent disputes that the dismissal was unfair and argues that that there is no requirement for the process to be perfect. Any errors that may have occurred in the process were minor. The Court does not dispute the fact that the process does not have to be flawless however, in this case a number of issues have been highlighted which in the Court’s opinion go to the heart of the Complainant’s ability to answer the charges being laid against him. In particular, the failure to provide him with all documentation being relied on by the decision makers at the various stages of the process and the failure to provide him with some of the allegations in advance of the investigation into same.

InPanasov v Pottle PigFarm UDD1735 this Court concluded;

• ‘The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.’

Remedy

Section 7 of the Act states

• 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
  (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
  (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
  (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
  (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The Court having considered the remedies available has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.

Having assessed all the information before it the Court considers that the Complainant has suffered financial loss as a result of the wrong he has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €10,000. The Court so determines.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €10,000. The decision of the Adjudication Officer is set aside. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
14th February 2019______________________
CHDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.