ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017923

Complaint(s):

Date of Adjudication Hearing:

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 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

CA-00023064-001

Unfair Dismissal Act 1977

Background

The Claimant has worked for the Respondent as an Area Manager since March 2010, on a part-time basis working three days a week, (23 hours), but was always contactable to the stores she covered for advice and help at any time it was required. The Claimant states that she is the only area manager working for the Respondent and that the current MD of the Respondent started in August 2018 and despite various requests from the Claimant to meet up, it never happened. The Claimant maintains that she has an unblemished record with the Respondent and that she is a dedicated, honest, hardworking and loyal person. The Claimant is seeking redress for unfair dismissal on 25th October 2018 and her minimum notice. The respondent submitted that the claimant resigned her position.

Summary of Claimants Position

That on the 24th of October at 5 pm

1              She phoned the Respondent with regard to recruiting for a new manager that was required for the Castlebar store.

2              The Respondent said that he was not looking at that at the moment and instead proceeded to ask the Claimant about an email the Respondent had sent out with regards to bullying and mistreatment of staff in the workplace.

3              The Claimant stated that she had seen it upon which the Respondent proceeded to tell her that complaints had been made about her and that he (the Respondent) was meeting with his solicitor the next day.

4              That on the 25th October at 16.20pm, the Respondent phoned her and said: “I have been to see my solicitor and he has advised me to go down the formal grievance route but it’s an open and shut case”. She asked what that meant and in reply, the Respondent said: “When my father (owner and former MD of the respondent) had problems like this in the past he would just cut ties and move on.”

5              That she asked:” you mean fire me?”, to which the Respondent replied, “well termination of employment, you can call it whatever you like”.

6              That the Respondent then proceeded to call out the claims made against her and that the Respondent said: “I have heard rumours and murmurs about you from when I started in the company.”

7              That she asked if that was the case, why the Respondent did not meet with her to discuss any issues/concerns that he had with her.

8              That she had worked with the Respondent and three other senior management figures in the company and never had any problems.

9              That at no stage during the phone call did the Respondent reassure her or give her comfort that the matter would be treated as per company procedures.

10           That she explained to the Respondent that he had a duty of care to her as an employee and that he had not sounded in any way impartial since he started talking to her.

11           That she then explained to the Respondent that she had a right to defend herself against the allegations made against her and that the company had a right to follow the correct procedures regarding grievances.

12           That the Respondent said:” I am going on my feelings and this cannot be resolved.”

13           That she informed the Respondent that he could not treat her this way and that it was so wrong.

14           That the Respondent told her that she had a right to defend herself but if it went down the formal route “I’d be persecuted” therefore there was no point and it would be better if she left and that she would be paid her holiday entitlement and whatever else she was owed.

15           That she was summarily dismissed with immediate effect.

16           That, on Friday 26th October, she sent an email to the Respondent stating that she strongly believed she had been unfairly dismissed and detailed the conversation from the day before.

17           That in this email she told the Respondent that from his tone and the context of the conversation, that it was very apparent that he (the Respondent) had already made his mind up and that he had summarily dismissed her without having given her an opportunity to defend herself.

18           That she requested all personal data to be sent to her along with details regarding the compensation to be paid for the unfair dismissal.

19           That she told the Respondent that she would reserve the right to progress the matter to the WRC if she was not appropriately compensated for the unfair dismissal.

20           That on 30th October, she received an email from the Respondent in which he stated that his account of the conversation between them was different to hers and that the purpose of his phone call was to make her aware of the situation and present her with the option of parting with the company by mutual consent.

21           That the email went on to say that she absolutely had the right to defend herself and that with her cooperation the Respondent wished to commence an investigation.

22           That on the 31st October she replied to the Respondent via email, in which she stated that her account of their conversation was 100% accurate and that the email sent to her by the Respondent, 30th October, reiterated and confirmed that he had already made up his mind about letting her go prior to ringing her on 26th October, therefore summarily dismissing her. The Claimant states that she told the Respondent that she did not believe an investigation would be possible nor would it be just, based on the Respondent’s bias and “feeling”, and once again requested all personal data and details of the compensation package for the unfair dismissal to be sent to her.

23           That there were several emails sent and received between herself and the Respondent.

24           That in each of the emails she received, the Respondent maintained that she was still employed and in some of those offered an investigation to be undertaken with her cooperation.

25           That in each of her responses she maintained that she had been summarily dismissed on the 25th October, refused to take part in an investigation, and requested all her personal data, details of the compensation package for unfair dismissal to be sent to her.

26           That in her last email to the Respondent on 5th November, she cited irreparable breach of trust, ongoing dishonesty, and unfair treatment and again requested all personal data, details of the compensation package for unfair dismissal, P45 and letter of termination to be sent to her.

27           That in the last email she received from the Respondent, the Respondent informed her that they were treating her absence as a resignation.

28           That she has been treated completely unfairly, that she was dismissed after nearly 9 years of employment without the correct procedures being followed.

Summary of the Respondents Position

1. That it is his belief that the Claimant had planned to claim unfair dismissal from the moment he made her aware of the several complaints he had received from other employees about her mistreatment of staff.
2. That on 22nd October, he received a complaint from an employee   claiming gross mistreatment by the Claimant to the complainant and other staff, that on the 23rd October he sent out a company-wide anti-bullying email stating “if any employee feels they are being bullied or treated unfairly by another employee please know that you can contact me directly and in confidence at this email address.”

3              That he received a further five complaints about the Claimant from five different employees, one of which he received after talking to the Claimant.

4             That the Claimant rang him on the 24th October to discuss company business and he informed the Claimant that he had received several complaints about her treatment of staff and that he would like to seek advice from the solicitor and would call the Claimant back the next day.

5              That on the 25th October, he rang the Claimant to explain the situation to her, that he received six complaints from different employees over her mistreatment of staff and read out extracts of each complaint.

6. That he asked the Claimant if she would like to part with the company amicably in which the company would pay her holiday entitlements or to investigate these complaints.

7              That on 26th October, he received an email from the Claimant, in which she attached her response to the telephone conversation.

8              That he replied to this email on 30th October, in which he disagreed with the Claimant’s account of the conversation, recommending that they keep their correspondence to email for record purposes, that he informed the Claimant that the purpose of the phone call was to make the Claimant aware of the situation and present her with the option of parting with the company by mutual consent, and that the Claimant “absolutely” had the right to defend herself, so with the Claimant’s cooperation he would like to commence an investigation into the allegations of mistreatment of staff by six employees.

9              That there were several emails between himself and the Claimant in which he repeatedly told the Claimant that she was still employed and invited her to take part in an investigation, upon which the Claimant repeatedly claimed that she had been dismissed.

10           That after being absent from work for two weeks he emailed the Claimant telling her that her absence was being treated as a resignation.

Findings

Both parties submitted written and oral argument.

I find that when the Respondent sent out the company-wide email, he was remiss to not have included the pages regarding bullying and harassment from the employee handbook, which has listed examples of what constitutes as bullying and harassment and the informal complaints procedure, which states that “in the first instance a person who believes that they are the subject of bullying/harassment should ask the person responsible to stop the offensive behaviour.”

I find that upon receiving complaints against the Claimant for mistreatment of staff, the Respondent should, first and foremost, have consulted the employee handbook and should have familiarised himself with the procedures for dealing with such complaints.

I find that the Respondent did not know what was contained in his own handbook or he decided to completely ignore the procedures contained in it.

I find that in the event of a formal procedure the employee handbook states;

“In the interest of natural justice, the alleged bully or harasser will be notified in writing of the nature of the complaint, given a copy of the allegation, informed of his or her right to representation and will be given every opportunity to rebut the detailed allegations made.”

I find based on the Respondent’s own submission, that on the 25th October, he phoned the Claimant and he read out extracts of each alleged complaint to her. I find that the Claimant was not provided with a copy of the alleged allegations made against her

I find that the Respondent did, in fact, have a conversation with the Claimant, with the sole purpose of dismissing her, as per email dated 30th October, that the purpose of the phone call was “to make you aware of the situation and present you with the option of parting with the company by mutual consent.”

I find that regardless of the words mutual consent, the Respondent approached the Claimant without fairness, without sympathy, without comfort, without impartiality and most of all with complete disregard to their own procedures and natural justice.

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 that the Claimant was Unfairly Dismissed, and I award her the sum of €9880 being 26 weeks’ pay.

CA-00024932-001

Minimum Notice and Terms of Employment

Background

The Claimant has worked for the Respondent as an Area Manager since March 2010, on a part-time basis working three days a week, (23 hours), but was always contactable to the stores she covered for advice and help at any time it was required. The claimant’s employment was terminated on the 25th October 2018

Findings

I find that the claimant service from March 2010 to the 25th October

Decision

In accordance with Section 41 of the Workplace Relations Act, 2015requires that I make a decision

I find that the Claimant is entitled to 4 weeks’ notice @€380, equals gross €1520.

Dated:17th September 2019  

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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