ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017850
Parties:
| Complainant | Respondent |
Anonymised Parties | A Staff Accountant | A Computer based Testing Provider |
Representatives |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00023031-001 | ||
CA-00023031-002 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 41 of the Workplace Relations Act, 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant was employed by the respondent as a Staff Accountant from 19th January 2015 until 31st August 2018. The complaint relates to alleged unfair dismissal and the non-payment of minimum notice entitlements to the complainant. Both partied provided written documentation at the adjudication hearing. Further information was requested by both parties. The most recent date of receipt of additional information was 22nd July 2019. |
CA-00023031-001 Unfair Dismissal
Summary of Respondent’s Case:
The respondent denies that the complainant was unfairly dismissed. The respondent outlined a number of issues with the complainant’s behaviour at work and the subsequent disciplinary sanctions that were imposed. The respondent contends that there were issues with the complainant’s attitude and demeanour towards her colleagues and that this led to complaints being made to management. The respondent stated that the complainant received a written warning on 2nd June 2016 as a result of a disciplinary process and was also placed on a Performance Improvement Plan (PIP) at that time. The respondent outlined that in March 2017, the complainant was once again placed on a PIP for similar behaviour that led to the first written warning in June 2016. On this occasion, the respondent confirmed that the complainant did not receive a written warning but was supported by management through the provision of a review carried out by an external provider to assist the complainant in understanding her behaviour and to bring about improvements in the workplace. The respondent stated that the complainant was also provided with an internal mentor to assist her in improving relationships with her colleagues. The respondent confirmed that further complaints were made, and the complainant was given another written warning in May 2017 which was extended in November 2017 as well as an extension of the PIP previously introduced. A further complaint against the complainant in February 2018 resulted in the complainant receiving a final written warning and a further extension of the PIP. At this point the respondent stated that it also provided the complainant with third party assistance to help the complainant improve her communication skills and working relationships. The respondent stated that a further incident took place on 2nd August 2018 which led to a disciplinary process and ultimately resulted in the complainant’s dismissal. The respondent stated that the complainant did not appeal any of the previous disciplinary sanctions but did seek an appeal in relation to her dismissal. The respondent stated that an appeal hearing took place on 7th September 2018 and as the complainant did not provide any reasons why her appeal should succeed, the decision to dismiss her was upheld on appeal. The respondent confirmed that the complainant was not dismissed for gross misconduct. It referred to the incident that led to the complainant’s dismissal as being the “last straw” which followed a number of similar incidents over a prolonged period of time. The respondent cited the case of Donnelly v Arklow Pottery [UD 572/1990] in support of its position in that regard. The respondent’s position is that it acted reasonably at all times and despite several attempts to support and assist the complainant, there were no improvements in her conduct towards others at work and the respondent was ultimately left with no option but to dismiss the complainant. The respondent contends that its decision to dismiss the complainant was reasonable and in accordance with Section 6(4)(b) of the Unfair Dismissals Acts, 1977-2015. |
Summary of Complainant’s Case:
The complainant contends that she was unfairly dismissed. The complainant’s representative stated that the respondent’s procedures were fundamentally flawed as the complainant was not afforded the opportunity for legal representation at the time of the disciplinary processes and was not provided with CCTV footage in relation to the incident of 2nd August 2018 which would have exonerated her from any wrongdoing. The complainant stated that she was also denied the opportunity to meet her accusers in relation to the statements that they made in relation to her alleged treatment of them. Based on the procedural flaws, the inconsistent approach and the predetermined outcome of the process, the complainant contends that the sanction of dismissal was unfair and disproportionate. The complainant is seeking compensation in relation to her complaint. |
Findings and Conclusions:
In relation to this complaint I find as follows: The complainant was subject to the respondent’s disciplinary procedures on a number of occasions between June 2016 and her eventual dismissal in August 2018. The complainant received a number of written warnings in relation to her communication skills and her behaviour and attitude towards her work colleagues. The worker chose not to appeal any of those sanctions and on that basis, I find that the complainant must have accepted at the material times that she had behaved in the manner described. I note that as well as imposing disciplinary sanctions against the complainant, the respondent also made significant efforts to support her in making the necessary improvements in her approach to her colleagues and in improving relationships at work. After a number of repeated incidents of similar behaviour, and despite its efforts to support the complainant, the respondent took the decision to dismiss the complainant from her employment on the basis of an incident that occurred on 2nd August 2018. Incident of 2nd August 2018 From reviewing the documentation provided on this incident, there were complaints made by the complainant in relation to her colleagues behaviour towards her (alleging that she was told to “f..k off” on three separate occasions during a heated conversation). The complainant’s colleague claimed that she merely said “f…king hell” out of exasperation at the complainant’s behaviour towards her during a task that was being carried out with another colleague at that time. A complaint was also made against the complainant in relation to her attitude, tone and demeanour towards her colleague during this interaction. Following an investigation, the complainant was subject to a disciplinary process because of her alleged behaviour and was ultimately dismissed as a result of the incident and because she was in receipt of a final written warning at that time. Legal Representation The complainant outlined at the adjudication hearing that she was entitled to have legal representation during the disciplinary process by virtue of the High Court decision in Michael Lyons v Longford Westmeath Education Training Board [2017 IEHC 272]. The complainant stated that her right to representation was limited to a work colleague at the time. On this issue I note the Supreme Court decision in Burns and Hartigan v Governor of Castlerea Prison [2009] 20 E.L.R. 109 which provides that an employee may be entitled to legal representation in a disciplinary process in certain “exceptional circumstances”. The decision in Burns provides a list of factors that require consideration prior to deciding if exceptional circumstance exist and whether legal representation is required. These factors are as follows: the seriousness of the charge and the proposed penalty, whether any points of law are likely to arise, the capacity of the particular person to present his or her own case, procedural difficulty, the need for reasonable speed in making the adjudication, that being an important consideration and the need for fairness between the different categories of people involved in the process. Despite the complainant’s assertion that she was entitled to legal representation by virtue of the Lyons decision, I find that the factors as listed in Burns would still apply to the complainant’s case prior to a decision being made on that issue. Currently, this has been clarified by the Court of Appeal in its decision in the case of Irish Rail v Barry McKelvey (2018) IECA 346, which states as follows: “While it is true to say that Mr McKelvey faces a disciplinary inquiry which could lead to his dismissal and which has the further potential to impact on his future employment prospects and his reputation, in this regard he is no different to a very substantial percentage of employees facing allegations of misconduct in the workplace. In my view the allegation of misconduct against Mr McKelvey is a straightforward one and I am not satisfied that he has identified any factual or legal complexities that may arise that he should not be in a position to deal with adequately with the assistance of {his trade union official}.” Having considered the factors above and applying them to the instant case, I do not find that exceptional circumstances existed that would have necessitated the requirement for legal representation during the disciplinary process. This was approximately the fifth occasion that the complainant had been subject to the respondent’s disciplinary procedures for similar behaviour and I find that it would have been relatively straightforward for the complainant to partake in the process without being legally represented. Dismissal - The Applicable Law Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows: 6(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, In the instant case the respondent dismissed the complainant as a result of her conduct in accordance with Section 6(4)(b) of the Unfair Dismissals Acts, 1977-2015 and contends that it acted reasonably in reaching the decision it did. Band of Reasonable responses As to whether there were substantial grounds for the Complainant’s dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.” The Appeal At the appeal of the dismissal the complainant did not raise any issues relating to not having representation during that process. The respondent confirmed that the right to representation was clarified to the complainant but there was no request from her to postpone the appeal meeting. The respondent stated in evidence that the complainant disagreed with the statements of her co-workers and with the decision to dismiss her but did not put forward any further grounds of appeal at that time or offer any compelling reasons why the decision to dismiss her should be overturned. Consequently, the respondent upheld its decision to dismiss the complainant from her employment. Other issues The complainant stated that she was not provided with CCTV footage that would exonerate her from any wrongdoing. The respondent stated that having reviewed the CCTV footage, it would not be used as part of the investigation as it was not helpful and because there was no policy in place in relation to using CCTV footage in disciplinary proceedings. On that basis it did not provide the footage to the complainant. On this issue I find that it was incorrect of the respondent not to provide the footage once requested. It may not have been useful to the respondent, but the complainant was entitled to see it for herself. The complainant also stated that there was a predetermined outcome to the disciplinary process on the basis of questions asked by the HR Manager at a previous investigation meeting in February 2018. During that process the HR Manager asked questions in relation to the atmosphere that would exist at work if there was a different Accountant in place etc. The complainant felt that this indicated a bias against her, and that the incident of the 2nd August 2018 was used to bring about her dismissal as a result of little or no wrongdoing on her part. On this issue I find that the level of support and assistance provided to the complainant does not support the contention that the respondent was trying to bring about the complainant’s dismissal from the organisation. It is clear that the respondent made every effort to help the complainant in the workplace and offered extensive support over a prolonged period of time. In relation to the complainant’s assertion that it was wrong of the HR Manager to investigate two separate issues (February 2018 and August 2018), I do not accept this point. While the HR Manager was entitled to conduct investigation meetings on each separate incident, he was not involved in subsequent disciplinary procedures on either occasion. Accordingly, I do not find that anything procedurally unfair transpired during the disciplinary process that led to the complainant’s dismissal. Conclusion The role of the Adjudication Officer is to decide if the respondent acted reasonably in relation to terminating the complainant’s employment. The complainant in this case was in receipt of a final written warning (not appealed) following a number of disciplinary processes. A further incident on 2nd August 2018 resulted in a disciplinary process which led to the complainant’s dismissal. In all of the circumstances of this complaint, I am satisfied that the respondent’s decision was within the range of reasonable responses of a reasonable employer. Accordingly, I do not find that there is merit in the complaint. |
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.
Having considered the submissions of both parties, I find that the respondent acted reasonably throughout the process and that the complainant was not unfairly dismissed. Accordingly, I find that the complaint of alleged unfair dismissal is not well founded. |
CA-00023031-002 Minimum Notice
Summary of Complainant’s Case:
The complainant contends that she did not receive the statutory period of notice of the termination of her employment. The complainant is seeking that she be paid two weeks’ gross pay in respect of notice entitlements. |
Summary of Respondent’s Case:
The respondent acknowledges the complainant’s right to two weeks gross pay in respect of notice entitlements. The respondent stated that it will discharge payment to the complaint in respect of her minimum notice entitlements within four weeks after the date of the adjudication hearing. |
Findings and Conclusions:
I note the commitment given by the respondent at the adjudication hearing on 5th March 2019 that it would discharge the complainant’s notice entitlements to her. However, in correspondence dated 12th April 2019, the complainant’s solicitor confirmed that the complainant’s notice entitlements had not yet been discharged to her. Given that the complainant was employed by the respondent from January 2015 until 31st August 2018, notice entitlements are as follows: Section 4(2)(b) of the Minimum Notice and Terms of Employment Act, 1973 states: 4(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, On the basis that the respondent has not yet discharged the complainant’s notice entitlements to her, I find that the complaint is well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The respondent is directed to pay the complainant two week’s gross pay in respect of notice entitlements. |
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Unfair Dismissal, Minimum Notice entitlements, Cases cited: Burns and Hartigan v Governor of Castlerea Prison [2009] 20 E.L.R. 109, Michael Lyons v Longford Westmeath Education Training Board [2017 IEHC 272]. Irish Rail v Barry McKelvey (2018) IECA 346, The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241 |