ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference: ADJ-00013332

Parties:

	Complainant	Respondent
Anonymised Parties	Senior Customer Relations	IT Manufacturer

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00017562-001	21/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00017562-002	21/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998	CA-00017562-004	21/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00017562-005	21/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007	CA-00017562-006	21/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00017562-007	21/02/2018

Date of Adjudication Hearing: 15/01/2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Background:

The Complainant was employed as a senior customer relations employee from 17th August 2015 to 24th November 2017. He was paid €36,000 per annum. He has made claims under the Payment of Wages Act, Parental Leave Act, Employment Equality Act, Consumer Protection Act, Industrial Relations Act, Unfair Dismissal Act and Minimum Notice & Terms of Employment Act. He is seeking compensation.

The Employment Equality claim CA 17562-003 had been withdrawn.

The Parental Leave claim CA 17562-004 has been withdrawn.

The last supplementary submissions were received on 27th January 2019.

1) Payment of Wages Act CA 17562-001

Summary of Complainant’s Case:

1)Holiday year 2017. The company computer showed a balance of 46.8 hours owing.

2)3 days sick pay owing for February 2017: This was raised in May /June 2017 and also in Oct 2017.

3) 5 days sick pay in May 2017: This was raised in May /June 2017 and October 20107.

He complied with the rules of the sick pay scheme. There was a change in the procedure which was not notified to him. He didn’t exceed the benefits of the sick pay scheme.

4) 4.15 hours in overtime owing. This was requested by his manager but not paid. When he requested payment the Respondent rejected it.

He is claiming a total of €1,848.47 in total.

Summary of Respondent’s Case:

1)Holidays 2017

The Complainant would have been entitled to 163.8 hours for the full year 2017. He left the employment on 24th November 2017 and so his entitlements were 147.19 hours prorated. He received 117 hours in holidays leaving a balance of 30.19 hours owing. Upon his termination of employment, he was paid 30.19 hours in holiday pay, payslip submitted. Therefore, he received his full entitlement.

2)3 days sick pay owing for February 2017

This part of the claim is out of time and the Complainant did not request an extension to the time limit.

3) 5 days sick pay in May 2017

This part of the claim is out of time and the Complainant did not request an extension to the time limit.

4) 4.15 hours in overtime owing

Overtime must be approved by a member of management.

They stated that all overtime was paid. They supplied payslips showing the following overtime payments:

201705 = €15.29

201706 = €58.71

201707 = €32.64

201708 =€37.21

201709 =€41.12

These claims are rejected.

Findings and Conclusions:

1)Holidays 2017

I note that the Respondents position as set out above stating that he received his full entitlement.

Therefore, I find that the Complainant received full holiday entitlement.

I find that this part of the complaint fails.

2)3 days sick pay owing for February 2017

This complaint was presented to the Commission 21st February 2018 therefore the period that may be investigated is 22nd August 2017 to 24th November 2017, the date of termination.

The Complainant did not request an extension to the time limit.

Therefore, I find that this part of the claim is out of time and I do not have jurisdiction to deal with it.

3) 5 days sick pay in May 2017

This complaint was presented to the Commission 21st February 2018 therefore the period that may be investigated is 22nd August 2017 to 24th November 2017, the date of termination.

The Complainant did not request an extension to the time limit.

Therefore, I find that this part of the claim is out of time and I do not have jurisdiction to deal with it.

4) 4.15 hours in overtime owing

I note the conflict of evidence.

I note the payslips supplied after the hearing which confirmed overtime payments in May, June, July, August and September totalling €184.97.

I accept the Respondent’s evidence and find that the Complainant was paid overtime.

I find that this part of the claim fails.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that this complaint was not well founded and so it fails.

2) Consumer Protection Act CA 17562-006

Summary of Complainant’s Case:

The Complainant stated that he requested discount when visiting a European mainland store and he was declined. He raised a complaint with the manager. That store manager reported the incident back to his management team. The complaint was investigated in a fact-finding exercise as part of the disciplinary procedure. He has claimed that he was penalised by the European store by reporting this to his local management team. The escalation of this matter by his employer to a disciplinary investigation is penalisation. This was referred to in the dismissal hearing. He is seeking compensation.

Summary of Respondent’s Case:

They stated that no breach of the Consumer Protection Act 2007 was ever notified by the Complainant to the Respondent. Conversely a complaint was made by the European store regarding his behaviour and this was the subject of a disciplinary investigation that did not result in a disciplinary hearing or a disciplinary sanction. There was no penalisation. This claim is rejected.

Findings and Conclusions:

I note the circumstances of this claim.

I found no evidence of a report of a breach of this Act.

I found no evidence of a whistleblowing act.

I found that the Respondent acted upon a complaint it received from its European store about an incident that was in effect a customer complaint.

I find that the Respondent carried out a fact finding investigation, as it is obliged to do.

I find that this matter was not escalated to a disciplinary investigation.

I found no evidence of penalisation.

I find that this complaint is misconceived.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that this complaint was misconceived and so it is not well founded.

3) Industrial Relations Act CA 17562-005

Summary of Worker’s Case:

The Worker raised concerns in an email dated 29th May 20147 about how he was treated and also again in an email dated 5th October 2017 to the Business Conduct Helpline about a number of concerns over how he was treated. He has claimed that he was bullied and harassed. He stated that during the previous six months prior to submitting his claim he was put under pressure and received three warnings which were unfair and used to dismiss him.

Summary of Employer’s Case:

The Employer stated that the Worker makes no specific complaint of bullying and harassment. The Employer has a detailed Bullying and Harassment Dignity at Work policy. At no stage did he lodge a complaint in respect of bullying and harassment under this policy. Because he has not invoked the policy and utilised it he is precluded from pursuing this complaint now.

Findings and Conclusions:

I note that the Worker raised concerns in two emails dated May and October 2017.

I note that there was no evidence of a follow up from either.

I note the existence of a dignity at work policy which is available on the intranet and made known to all staff.

I find that the Complainant has not invoked and /or exhausted the internal procedures.

I note that the Labour Court in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that I should not involve myself with this claim as the internal mechanism for dispute resolution was not invoked and exhausted.

4) Unfair Dismissals Act CA 17562-002

Summary of Respondent’s Case:

On 6th October 2017 the Complainant attended an investigation meeting to discuss the contents of a Chat transcript with a colleague which took place during working hours. He was advised that the investigation was to consider the potentially offensive, threatening and defamatory language used regarding members of management and the employer. He was given a copy of the Chat transcript; the disciplinary policy and he was offered the right of representation. He was subsequently called to a disciplinary hearing for 13th October 2017 but rescheduled for 16th then 19th Oct. On 19th October the Complainant told the Respondent6 that he would not attend until he had received a response to a letter sent on 18th October 2017, which contained a data request. He was advised that the Respondent would proceed with the hearing and would make a decision based on the information on hand. He did not attend that hearing. He was invited to an outcome meeting on 26th October 2017, but he did not attend.

The Complainant had accepted that it was him on the chat transcript. The investigator found that the chat content was grossly offensive. The request for an adjournment was refused because the only data considered was the chat transcripts and so the data request was surplus. The decision was solely based on the chat transcripts. Alternatives to dismissal were considered.

The contents of the transcripts were totally unacceptable to the Respondent. They were clear in their position that this action warranted dismissal. He was then informed of the decision to terminate his employment and he was given the right to appeal that decision. He appealed the decision and the hearing took place on 15th November 2017. The decision to dismiss was upheld.

They stated that data protection issues are matters for the Data Commissioner. They stated that the heart of the matter was the Chat Transcript transaction. The decision to dismiss was solely based on these conversations. Nothing turned up from the data release. The Complainant’s primary position is the legality of the acquiring of the conversations. They stated that the Respondent only relied upon one word “massacre”. This is not the case, these conversations concerned a number of people. The Complainant failed to address these comments. The Complainant didn’t properly engage with the investigator and he failed to attend at the disciplinary hearing. There was no evidence that the Respondent relied upon other incidents to influence their decision to dismiss. The Respondent complied with the provisions of SI146/2000. The Complainant by his own choice did not attend most of the meetings arranged. The dismissal was due to his conduct and there were substantial grounds to dismiss. IF by chance it is found that that this was an unfair dismissal the Complainant has contributed 100% to his dismissal.

This claim is rejected.

Summary of Complainant’s Case:

The Complainant accepts that the Respondent got the transcript from a colleague partaking in the chats. His position is that the Respondent illegally got and used the information. The chat meaning was taken out of context. His legal representative sought a data request and a postponement, but it was denied. He was advised not to attend the hearing until he had received the data. He was not given any notes of the dismissal outcome hearing so it impacted on his ability to make an appeal. He had performed his duties satisfactorily in the past. The denial of his right to data was a denial of his rights. He did not receive it until after the Respondent’s appeal decision. This is a denial of fair procedures. This renders the dismissal unfair. There was no informal process as is provided for in the policy. There was serious concern about how the Respondent got access to a private chat. It was pointed out that the Complainant was invited into this chat transaction. He was fully entitled to all his personal data on file. The Respondent never attended to the lawful objections raised by the Complainant. The Respondent did not comply with its own policy on disciplinary investigations. The Complainant was not advised of the potential outcome of dismissal from the disciplinary process. The colleague identified as a representative was not given time off to attend the investigation meeting. He was denied due process by the refusal of the Respondent to postpone the hearing until he had reviewed all his personal data on file. Disciplinary procedures invoked in May and June 2017 were fictitious.

He stated that he never refused to engage, he was awaiting information first to be provided. He had intended to co-operate, but he was prevented from doing so. He has a record of co-operation. He stated that providing the requested data the day after the appeal outcome was a tactic.

All of these renders the dismissal unfair. He is seeking compensation. He found work on 13th June 2018 earning a little more than previously with the Respondent. His contract has been further renewed.

Findings and Conclusions:

Substantive matter

I find that the Chat transcript was received from a colleague of the Complainant who partook in the chat transactions.

I find that the Chat transcript was not obtained illegally and the Respondent was entitled to use it rely upon it and act upon it and was obliged to do so.

I note that the tenor of the Chat was deemed by the Respondent to be offensive, threatening and defamatory.

An examination of the chat transcript shows statements by the Complainant and colleagues for example as follows:

She makes psychological terrorism, She’s stupid, a poor bad person, She is a bitch, She hates me, she is trying to kick me out, she is strange, they will dismiss me I know, we are collecting all the proofs to destroy her, they are aligned to E , terrible hypocrites, we must kick her off she is a bitch, E is a liar, she is really fake, Compulsive liar, she is an asshole, she is doing everything to send me away, what a bitch, I want E out, I want to massacre E and R. they are liars, about E, about bullism, I’ll leave but I’ll take E and R with me, we know that E is a shit, she is pissing me off, lets all call out sick for two days, she is a shit as well, we can push her out me and you.

I find that the Complainant complained about how these transcripts were acquired.

I did not find any effort by the Complainant to explain, contextualise and/or mitigate the impact of these statements.

I find that an implied term of mutual trust and confidence is in every contract of employment.

I find that an employer must have reasonable trust and confidence in their employees.

I find that if that is destroyed or undermined by the Complainant then how can the Respondent have trust and confidence in him.

Given the Complainant’s response to these allegations it showed that he had no remorse or regret for making them.

I find that this has had the effect of considerably compounding the gravity of the situation.

In that context I must conclude that these statements by the Complainant constitute a breach of trust and the Respondent acted reasonably in terminating the employment.

Therefore, I find that the dismissal was substantively fair.

Procedural Matter

I find that the Chat transcript was not obtained illegally, it was given by a colleague of the Complainant who partook in the chat stream.

I note that the Respondent carried out a fact-finding investigation and the Complainant took part in that.

I find that that he was recalcitrant and accused the Respondent of illegally acquiring the transcript.

I note that the Respondent escalated the matter to a disciplinary investigation.

I note that the Respondent did not advise the Complainant of the potential outcomes of the disciplinary investigation, which could include dismissal.

I find that he was given a copy of the disciplinary procedure which covers all possible outcomes including dismissal with notice or summary dismissal.

I find that this was not a fatal mistake rather bad practice and would not have had the effect of rendering the dismissal procedurally unfair.

I note that the Complainant sought an adjournment of the disciplinary hearing and it was granted.

I note that he then on the day before the hearing submitted a data request of his personal file. He then advised that following legal advice he would not be attending the disciplinary hearing until he received the data.

I note that the data was not received until the day after the outcome of the dismissal appeal.

I note that the Respondent confirmed in writing on a few occasions the allegations made against him and that they were based solely on the Chat transcript, which he had been given a copy.

Therefore, I find that the data request didn’t have a purpose. He was not seeking specific information which might assist his defence.

I find that the data request was a fishing exercise.

I find that the Complainant was wrong to refuse to attend the disciplinary hearing at that time and also the outcome meeting.

I note that he has claimed that he was not given the notes of the disciplinary hearing, but he declined to attend that meeting.

I find that the Respondent should have provided them.

Again, I find that this was not a fatal flaw of the procedure.

I note the Respondent’s evidence that they considered alternatives to dismissal but given his uncooperative approach to the disciplinary investigation and the fact that he showed no sign of remorse and made no pleas of mitigation the dismissal was inevitable given the tenor of the language used.

I find that there were aspects of the procedure which would not comply with best practice, but it did not render the dismissal procedurally unfair

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.

For the above stated reasons, I have decided that the dismissal was not unfair.

5) Minimum Notice & Terms of Employment Act CA 17562-007

Summary of Complainant’s Case:

The Complainant accepted at the hearing that minimum notice was paid.

Summary of Respondent’s Case:

Minimum notice was paid and evidence was produced to show this.

Findings and Conclusions:

I note that the Complainant has accepted that minimum notice was paid.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that as the notice was paid this claim is not well founded.

Dated: 7th March 2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Unfair dismissal, monies owed, whistleblowing, minimum notice, IR dispute