ADJ-00020080

Complainant

Respondent

Anonymised Parties

Gardening grounds supervisor

Private Country Estate and working farm

Representatives

 Mark Connellan

Connellan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026601-001

27/02/2019

The Complainant started working for the Respondent on the 12^th of March 2013.  Her employment ended on the 6^th of February 2019.  She received a gross weekly wage of €500.00. She worked twenty-five hours per week. 

The burden of proof is on the Respondent. 

Its case was that in 2016 four of the Complainant’s co-workers raised grievances about the Complainants behaviour.  The Complainant was the line manager of the four employees who had made complaints.    

An independent investigation into the allegations commenced on the 25^th of October 2016.  Terms of reference and procedures were agreed.  The terms of reference ran to fourteen points. 

The investigator attended at the workplace and met with each of the four co-workers.  The investigator attempted to meet with the Complainant, but she failed to do so.  The Complainant engaged a solicitor as was her entitlement.  However, the investigator despite many attempts never met the Complainant and/or her solicitor. 

The outcome recommendation from the investigators report was that the Complainant would not be allowed to control, manage and or supervise new members of staff that were engaged by the Respondent.  At the time of her report, the Complainant was still supervising two members of staff.  The investigator found that unless something had changed in the workplace, she could see no reason for any change in the Complainant’s supervision of those two members of staff.  Mediation was recommended between the Complainant and one of her co-workers.  The report went on to state that she did not find any of the grievances raised of themselves should trigger a disciplinary process with respect of the grievances.

The independent investigator had no difficulty in recommending that the Complainant should be subject to a workplace disciplinary process arising out of her wilful failure to follow the Respondent’s instructions to engage in the investigation process.  The report found that the Complainant refused on three separate occasions to meet with the investigator without apology or explanation. 

On the 23^rd of May 2017, the Complainant was provided copies of the investigators report.  The Complainant was advised that the Respondent regarded the matters therein as serious and that they may warrant disciplinary action.  The Complainant was asked to submit her comments in relation to the report findings.

No comments on the report were received from the Complainant.  On the 6^th of June 2017 the Complainant’s solicitor did make preliminary enquiries with the Respondent in the weeks after the report issued however nothing was forthcoming. 

The Respondent’s case is that they couldn’t engage two supervisors and had no option but to dismiss the Complainant.

By letter dated 6^th of February 2019 the Complainant was advised that the Board of the Respondent had considered the matter and in light of the conclusion of the investigator, the Board decided that it had no option but to terminate the Complainant’s employment.  The letter gave the Complainant an opportunity to appeal the decision.  A 21-day period was allowed for this.  The letter went on to state that the Complainant’s employment was terminated, and she was directed to leave the grounds of the Estate forthwith and not to return save with the express permission of the board. 

The Complainant appealed the Board decision.  The Respondent engaged a HR consultant, but she was unavailable to hear the appeal.  The Respondent then arranged another HR consultant to hear the appeal hearing but at that stage the WRC complaint had already been lodged.  The Respondent was advised not to hear the appeal at that stage.  The Respondent accepted that the Complainant wasn’t given the right of appeal. 

As regards the Complainants losses since the dismissal, the Respondent submitted that the Complainant did not adequately mitigate her loss.  She was only available for part time work. 

The Respondent’s case was that they had no option but to terminate their employment and the dismissal was fair.

The Complainant explained that since her dismissal she has been looking for replacement work.  She is receipt of a carers allowance for her mother.  She gave evidence of the various applications she submitted and the efforts that she’s engaging to rebuild her own garden centre. 

The Complainant’s case is that she received a memo from payroll on the 23^rd of January 2019 stating that one of her subordinates was now the ground supervisor.  This confirmed to her that her job was gone.  She had not been notified by the Board of the Respondent of any decision at that stage. 

The Complainant explained how she was stressed following the complaints made against her.  She provided an explanation for the times that she didn’t meet with the investigator.

The Complainant relied on the facts outlined by the Respondent above.  She submitted that there was no due process or fair process in the decision to terminate her employment.  She argued that the steps outlined in S.I. 146 of 2000 weren’t followed. 

There was no disciplinary procedure in place in the workplace.  Therefore, I have applied the principles of fair procedure set out in S.I. 146 -2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).

The Code of Practice sets out that procedures are necessary to ensure that disciplinary measures are applied in a fair and consistent manner and handled in accordance with the principles of natural justice.

The essential elements for any procedure for dealing with disciplinary issues are that they are rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed are well defined and an internal appeal mechanism is available to the employee.  The general principles of natural justice and fair procedures include:

1. That any allegations or complaints are put to the employee concerned
2. The employee concerned is given the opportunity to respond to any such allegations or complaints
3. The employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by or on behalf of the employee and any other relevant or appropriate evidence, factors or circumstances.

In this case there is clearly a breach of these procedures.  The Complainant was not advised that a disciplinary decision was pending or given the opportunity to engage in that decision-making process.  Similarly, the appeal she made was not processed either. 

The decision by the board of the Respondent to terminate the Complainants employment was made in a vacuum without any input from the Complainant.  Alternatives such as demotion or any other appropriate disciplinary action short of dismissal were not considered. 

There was no effort made on the Respondents part to comply with fair procedures. 

It did engage an independent investigator following complaints made in 2016. The date of the investigation report was the 14^th of April 2017.  However, the Respondent sat on this report until February 2019.  The Respondent could not point to any trigger that gave rise to the Board decision and outcome letter of the 6^th of February 2019. 

The explanation for the appeal hearing not going ahead was unsatisfactory.

I find that the case is well founded.  The Complainant was unfairly dismissed.

The Complainant suffered a loss of earnings between the date of her dismissal and the date of the hearing of thirty weeks.  Her hourly rate while in employment was €20.00.  The Complainant was in receipt of a carers allowance during this period.  She can work 15 hours a week outside of the home while in receipt of this allowance. 

I accept the Complainant’s evidence regarding her efforts to mitigate her loss.  I accept that the Complainant will find it difficult to find replacement work.     

I award the Complainant the sum of €9,000.00 for financial loss to date and a further €6,000.00 for future loss.  These are gross payments and are taxable in accordance with the Revenue rules on termination of employment. 

Unfair dismissal. SI 146 of 2000. No procedures.