Complainant

Respondent

Anonymised Parties

Cleaner

Contract Cleaning Company

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-00012814-001

27/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012814-002

27/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012814-003

27/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012814-004

27/07/2017

The complainant was employed as a cleaner by the respondent having commenced his employment on 9 November 2016. The complainant worked primarily at two specific locations and was paid €10.05 per hour for about 33 hours per week. The complainant was dismissed on 12 May 2017 for gross misconduct following an investigation in respect of missing property.

There were no grounds to justify dismissal.

The procedures used by the respondent were flawed and there was no response to an appeal lodged by the complainant.

The complainant was not given his entitlements as regards minimum notice.

The complainant did not receive his correct entitlements as regards annual leave or Public Holidays.

The complainant was dismissed from his employment on the grounds of gross misconduct following a thorough investigation and a fair disciplinary process.

Because he was dismissed for gross misconduct the complainant has no entitlement to minimum notice.

The complainant was not paid for one Public Holiday due to an oversight.

There was an error in computing the complainant’s annual leave entitlement and the respondent accepts that there may be some money due to him in this respect.

The complainant commenced employment in November 2016 with the respondent company which operates contract cleaning services on a national basis. The complainant was assigned to work mainly in two locations, a department store and a bus garage. The events pertinent to these complaints occurred in the bus garage.  

On 9 May 2017 the complainant was questioned by his line manager as to whether he had allowed unauthorised persons on the site and also in relation to two items of lost property, a mobile phone and a tablet. Later that day the respondent sent the complainant an email with a letter attached inviting him to attend an investigation meeting in the company’s offices on 10 May 2017. The complainant was advised that he could be accompanied by a fellow colleague or recognised trade union representative. The complainant attended without representation.

During this meeting, which was conducted by the Area Manager, the complainant admitted bringing a friend on site and that he did not realise that this was prohibited.   As regards the items of lost property the complainant admitted taking them home and explained that he had done so in the past in the hope of being able to identify the owner and return their property to them. The manager pointed out that the tablet was removed on 13 April and the phone on 21 April. The complainant said that he had hoped to find the owners but now accepted that he had made a mistake. The meeting concluded with the complainant being again suspended pending further investigation.

On 10 May 2017 the respondent sent an email to the complainant attaching a letter inviting him to attend a disciplinary meeting to be held on 12 May 2017. In addition to the issues of unauthorised personnel on site and failure to follow lost property procedure there was added an issue in relation to the failure to notify absence. The letter again advised the complainant of his right to representation. The minutes of the previous meeting and the respondent’s Disciplinary Procedure were also attached.

The disciplinary meeting took place on 12 May and was conducted by the respondent’s Operations Manager. Once again the complainant was unaccompanied. The three issues were outlined to the complainant who confirmed that he admitted all three issues. The Manager stated that the issue of removing lost property from the site was considered to be gross misconduct and could end in dismissal.   The complainant repeated that he now knew that he had made a mistake and pointed out that he had immediately admitted that he had taken the phone and tablet. The complainant’s suspension was continued.

The letter containing the outcome of the disciplinary meeting is dated the same day, 12 May 2017.   It appears from evidence at the hearing that it was not sent to the complainant by email until 15 May 2017.   The letter states that the decision of the Operations Manager was dismissal. In reaching this decision regard was had to all three issues which formed the agenda for the disciplinary hearing. Summing up these issues the Manager stated: “Taking into account the above I am satisfied that the above allegations amount to gross misconduct and an irrevocable breach in the trust and confidence that (the company) places in its employees.”   The letter goes on to state that the complainant’s employment would terminate with immediate effect and therefore he is not entitled to notice or pay in lieu of notice. The complainant was advised of his right of appeal within five working days of the date of the letter and was given the name together with the postal and email address of the person to contact in this regard.

It appears that the complainant sent an email on 16 May 2017 lodging an appeal against the decision but that the email address used by him was incorrect. The respondent stated that they received a phone call from the union official representing the complainant around 6 July 2017 enquiring about the appeal but that having checked with the appeals officer and the HR Department advised that no appeal had been received. The respondent’s position is that in those circumstances there was no breach of procedure.

Complaint No. CA-00012814-001:

This is a dispute in relation to the complainant’s claim of unfair dismissal lodged under the Industrial Relations Act, 1969. The complainant’s representative has submitted that there were insufficient grounds to justify dismissal and that the decision to dismiss was procedurally flawed.

I note that there were three grounds cited by the respondent to justify dismissal. There is no doubt that the most serious matter was the removal of lost property from the bus garage by the complainant.   In the case of the tablet the evidence was that this item was brand new and still in its original box. The complainant removed it on 13 April without permission and without informing anybody in this regard. The owner enquired about it shortly afterwards but to no avail as obviously the item had not been deposited in Lost Property as should have happened. On 21 April the complainant removed a mobile phone from the garage in the same manner. It was not until 9 May, when questioned about matters by his line manager, that the complainant admitted removing these items. The excuse offered was that he took them home in order to attempt to establish their ownership by logging into the devices. The complainant further stated that he had done this before and successfully re-united items with their owners.

I must state that I find this explanation to be a thoroughly unsatisfactory one. The policy was that any property found on the bus when it came out of service should be deposited in the designated area for lost property. I accept that the line manager told the complainant that he could hold onto loose change but it is clear that the policy regarding lost property was known to the complainant. The explanation about taking a device home so that by examining it and accessing its contents it might be possible to establish ownership raises all sorts of concerns as regards data protection and privacy. The complainant held on to the tablet for nearly four weeks without informing anyone about it therefore ensuring that its lawful owner could not reclaim it. Such conduct has to be viewed in a most serious manner. The company handbook includes in the definition of Gross Misconduct the following:

“Theft or in any way misappropriating property or money from the company, its employees, customers / clients or knowingly aiding and abetting similar acts by another person.”

The admitted actions of the complainant amount to misappropriation of property from a customer / client.

As regards the procedures I find that the complainant was advised of his right to be accompanied at the various hearings but chose not to have anyone with him. I note that he was formally advised of two issues prior to the investigation meeting and that he was actually also questioned about the failure to notify absence. The three issues were, however, listed for the disciplinary hearing.   The other concern raised was with regard to the fact that there was no appeal hearing. I accept that the complainant wished to appeal and sent an email to this effect. I note that the email address is not the same as the email address provided to him in the letter of dismissal. The complainant’s representative raised the issue of an appeal hearing with the respondent some weeks later but there was no record of the appeal being received and, because the deadline had long passed, the respondent felt that they had abided by their procedures. It seems to me that it was a pity that the matter was not investigated a little more thoroughly by either or both parties at that time as the error that was obvious at the hearing might have been uncovered then. I do have to find that the respondent was not knowingly in breach of procedures in this regard.

Having taken all matters into consideration I find therefore that the complainant was not unfairly dismissed.

Complaint No. CA-00012814-002:

This is a complaint under the Payment of Wages Act, 1991, to the effect that the complainant was not paid all monies due to him upon termination of employment and that in particular he was not paid in lieu of notice.

The respondent stated that Section 8 of the Minimum Notice and terms of Employment Act, 1973, meant that they were exempt from the liability to pay notice to the complainant.   The Section reads:

Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

The complainant was dismissed for gross misconduct and I find that the respondent does not accordingly have a liability to pay notice.

Complaint No. CA-00012814-003:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive his full annual leave entitlements. The termination of employment occurred on 15 May 2017.   The holiday year according to the Act commences on 1 April of each year and runs until 31 March of the following year. The complaints were lodged with the WRC on 27 July 2017 and therefore the cognisable period includes the annual leave year 2016/2017. In their original submission the respondent stated that they believed that the complainant was owed 2.84 hours in annual leave entitlement.   The complainant’s representative, in a comprehensive submission, claimed that the complainant had accrued 63.6 hours of annual leave and had been paid for 35.5 hours. In a supplemental submission following the hearing the respondent accepted the claim that the complainant had accrued 63.6 hours but states that he had received 2 payments in July 2017 of 14 hours and 35 hours.   Having gone through the pay slips provided by the complainant I note a payment identified as H/Pay for 35.5 hours on a payslip dated 28/05/2017 and a similarly identified payment of 14 hours on a payslip dated 23/07/2017. It therefore appears that there was a shortfall of 14.1 hours in respect of annual leave.

Complaint No. CA-00012814-004:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive his proper entitlements in respect of Public Holidays.   In their initial submission the respondent accepted that the complainant had not been paid for the public holiday occurring on Easter Monday, 2017. Section 41(6) of the Workplace relations Act, 2015 states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The public holidays that fall within this 6-month period are St. Patrick’s Day, Easter Monday and the first Monday in May. In their supplemental submission the respondent accepts that there was an under-payment of 2 hours in respect of St. Patrick’s Day and that the complainant is owed 6.9 hours in respect of Easter Monday. The payslip dated 14/05/2017 shows a payment of 8 hours in respect of the May public holiday and this calculation is not contested by the complainant. The total shortfall in regard to public holiday entitlement is therefore 8.9 hours.

The complainant’s representative has argued that in dealing with this matter account should be taken of the fact that the respondent is a large employer with a well-established knowledge of employees’ entitlements under the legislation. It does appear to me that, while accepting that errors may occur, in this case they were repeated resulting in an ongoing under-payment to the complainant.

Complaint No. CA-00012814-001:

This is a dispute under the Industrial Relations Act, 1969. Having carefully considered all submissions, both written and oral, I find that there were substantial grounds justifying the decision to dismiss and that the procedures used were not seriously flawed. As a consequence, I find the complainant was not unfairly dismissed and recommend in favour of the respondent’s position in this regard.

Complaint No. CA-00012814-002:

This is a complaint under the Payment of Wages Act, 1991. For the reasons outlined above I find this complaint to be not well founded and it accordingly fails.

Complaints No. CA-00012814-003/4:

These are both complaints under the Organisation of Working Time Act, 1997. For the reasons outlined above I find these complaints to be well founded. The complainant was underpaid by 14.1 hours in respect of Annual Leave and 8.9 hours in respect of Public Holidays. The total economic loss is therefore 23 hours at €10.05 per hour which equals €231.15. In addition and in the particular circumstances of this case I find that the complainant should also receive a compensatory payment of €500.00. I therefore order the respondent to pay to the complainant the sum of €731.15 in this regard.