ADJUDICATION OFFICER DECISION/

Adjudication Reference: ADJ-00017782

Parties:

Complaint(s):

Date of Adjudication Hearing: 01/04/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 – 201 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The claimant commenced employment with the respondent on May 5th, 2017.She was paid €921.18 gross (€700 nett) working a 42-hour week. At the time of her dismissal she was working in the High Care area. The High Care area is defined as high risk because the nature of the production process and the product process means that it has a high risk of infection being transmitted to children who are classed as a vulnerable risk group. The claimant was provided with induction training on her commencement of employment and subsequent refresher hygiene training was also provided on more than one occasion.

On or about the 6/8/18 the claimants Team Leader made a verbal complaint to his supervisor about the claimant and was asked to put it in writing.

The complaint was submitted to the supervisor and contained complaints under 6 headings:

1. Entering high care through the exit turnstile.

(on 3 occasions)

2. Screaming at him in front of several team members.
3. Making smart remarks about his weight.
4. Throwing cheese strings at him regularly
5. Making racist comments about Irish people
6. Telling lies to cover her mistakes

The claimant was called to a meeting on August 7th, 2018 and issued with a letter of suspension pending investigation and a letter of complaint against her.

The claimant attended an investigation meeting the following day (August 8th, 2018) and according to the respondent, answered all 6 allegations openly and honestly.

A letter dated August 9th2018 was sent to the claimant asking her to attend a disciplinary hearing on August 14th, 2018. It was at this meeting an anonymous witness statement in support of the team allegations was introduced. The claimant was not provided with the name of the witness. The respondent submitted the claimant was not provided with the name of the witness for safety reasons. The claimant was also given an up-dated statement from the complainant. At the end of the disciplinary hearing the claimant was issued with a letter inviting her to an outcome meeting on the following day August 15th, 2018.

The claimant attended the Outcome meeting and was issued with a letter of dismissal with effect from the previous day August 14th, 2018.

The claimant appealed this decision, and this was held on September 12th, 2018. The outcome of this meeting was issued on September 26th, 2018 and it upheld the decision to dismiss the claimant.

Findings:

Both parties were present at the hearing and made written submissions to the Adjudicator.

When dealing with matters of alleged Unfair Dismissals it is of unequivocal importance, given the serious implications that it may have on an individual, that the principles of natural justice and fairness are applied at all times.

I find that the respondent does indeed have procedures that subscribe to the principles of natural justice and fairness, however I find that I have serious reservations in the manner in which they were operated in this instance.

Contained within the respondent’s submission is a copy of their Disciplinary Procedure, which states, “In all the above and similar cases a full investigation will be carried out by the company, during which time an employee will have the right to state their case”. The claimant took part in the investigation on August 8th, 2018 at 7.00pm and on August 9th2018 the claimant was invited by letter to attend a Disciplinary meeting on August 14th, 2018. I fail to see how a “full investigation” to establish the facts, issue a recommendation as to the next step in the process and interview all relevant witnesses was carried out in such a short period of time. It is noted that no report was issued. It is quite clear the claimant would not have had time prepare a defence and given that English is not the claimants native language it would have created difficulties.

I find that the introduction of an anonymous statement supporting the complainant’s version of one event should have been uncovered during the investigatory stage of the process, likewise with the updated complainant statement, these belong in the realm of the investigatory period and not the disciplinary stage. The foregoing only adds to confuse the process and call into question its integrity.

I find the anonymous statement which was duly signed however, the person name was not given to the claimant for safety reasons was taken by the investigator on August 13th, 2018.

I find the inclusion of this statement and the apparent weight given to its contents does not comply with the principles of natural justice and fairness.

I find that this is 4 days after the respondent decided to move the process from an investigatory stage to a disciplinary one.

I find the investigation should have explored the reason why the working relationship between the complainant and the claimant deteriorated over a relatively short period of time.

I find the wording of the “anonymous” statement clearly demonstrates a dislike of the claimant “Co-worker also said she treated her like a dog before the way she was speaking to her” and coupled with the fact that its anonymous raises significant questions in relation to its motive.

I find that the claimant’s explanations as to the breach of hygiene procedures were not at a variance to her initial comments but more of detailed explanation as to what happened.

I find by her own admission the claimant did breach hygiene procedures. The Union argued the claimant was not afforded similar sanction to another employee who committed the same offence. I find that no evidence to support that position was given at the hearing.

I find by her own admission the claimant engaged in verbal communications that breached the respondent’s policy on such actions, but again I would question as to why the respondent did not follow their own procedures for dealing with such incidents.

I find that the claimant’s explanation for the above behaviour is certainly plausible, as in “friendly banter” but none the less this behaviour is not appropriate in the workplace.

Summary:

I find that the initial investigation was fundamentally flawed for the following reasons:

1. No sufficient time was taken for a full and thorough investigation given the gravity and possible implications for the claimant.
2. The investigator remained involved by virtue of taking further statements after the process was moved forward to a disciplinary one thereby brining into question the impartiality and integrity of the process. This issue was created by the point made at no:1.
3. As the investigation was fundamentally flawed it stands to reason that the following stages in the process are not soundly based on the principles of natural justice and fairness, to which the claimant has an entitlement to.

I find the claimant did by her own admission breach hygiene policies and engage in behaviour in contradiction of the respondent’s policies. I find in this instance that both the claimant and respondent have to share responsibility for their actions.

I accept the respondent’s argument that re-instatement and re-engagement are not suitable remedies in this situation and in deciding on a compensation sum, that it should be just and equitable given the circumstances and taking into account the contribution made by the claimant to her own dismissal

Decision

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find the Dismissal unfair however for the reasons outlined above the claimant contributed to her dismissal and I award her €8500.

CA-00022951-002

Minimum Notice & Terms of Employment Act, 1973

Background

The claimant was employed from the 5th May 2017 to the 14th August. She was paid €921.18 gross (€700 nett)

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the claimant is entitled to 1 week’s minimum notice based on her service with the respondent of €921.18 gross.

The complaint under the Organisation of Working Time Act 1997 was withdrawn at the Hearing

Dated:   23rd July 2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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