Complainant

Respondent

Anonymised Parties

Account Specialist

An Online Gaming Company

Representatives

Damien Keogh Independent Workers Union

Cian Beecher Arthur Cox

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-00026188-001

10/02/2019

At the outset of the hearing the respondent noted that the it had changed its name to that listed above in October 2018.

The complainant commenced employment with the respondent in October 2012. She worked 40 hours per week and was paid a monthly gross salary of €2,300. The complainant lodged a complaint with the WRC on 10 February 2019, claiming that she had been unfairly dismissed.

The respondent provided a detailed written submission.

The respondent disputes that the complainant’s employment was terminated unfairly.

The respondent submits that the complainant’s employment was terminated following repeated and persistent absences and following a complete failure to reasonably engage with the respondent in relation to same contrary to the complainant’s contract of employment and the respondent’s policies and procedures.

The respondent provided a document summarising the background and instances of complainant’s absence record, commencing in July 2018 and ending in December 2018.

It is the respondent’s view that it is clear from the summary document that the respondent sought to engage extensively with the complainant over a six-month period in respect of the issue that ultimately culminated in her dismissal – following the imposition of progressive disciplinary sanctions. The respondent submits that the complainant continuously failed and/or refused to engage with the respondent on each and every occasion.

The respondent submits that the complainant was assessed by expert occupational health consultants on two separate occasions, once in July 2018 and once in August 2018. Both reports, according to the respondent, refer to the proposed withdrawal of home working privileges during a PIP process as creating childcare issues/concerns for the complainant.

The respondent sought the complainant attend at a further medical prior to the final stage of the disciplinary process, which she refused to do.

The respondent submits that the complainant was given ample opportunity to return to work prior to initiating each stage of the disciplinary process. No process was instigated or attempted to be instigated prior to the complainant being certified as fit to return to work by a medical professional. When a dispute arose between the respondent’s medical report and the certification being provided by the complainant, a further opinion from a different medical professional was obtained. This doctor concluded that there was no medical impediment to the complainant returning to work.

The respondent submits that a further assessment was arranged for the complainant on two further occasions and the complainant failed to attend such appointments noting that she was advised not to do so. This despite the complainant being contractually obliged to attend such appointments.

The respondent submits that it acted reasonably and at all times in line with the complainant’s contract and its policies and procedures and its decision to dismiss was entirely within the range of reasonableness.

The respondent submits that the termination of the complainant’s employment was fair and within the provision of the Acts and a reasonable employer, acting reasonably, would have made a decision to dismiss the complainant in circumstances where the complainant:

(i)                  Remained absent from work despite being medically fit to return to work by independent expert occupational health consultants on two separate occasions;

(ii)                Received a first written warning for her continued failure to return to work and to comply with the respondent’s reasonable and appropriate management instruction to attend meetings and return to work

(iii)               Received a final written warning following her continued unauthorised absence and her continued failure to comply with her contractual obligations and the respondent’s policies, despite repeated attempts by the respondent to engage with the complainant on these issues.

(iv)               Failed to attend work in circumstances where she had been certified as fit to work and where the respondent had advised her she was already on a final written warning which clearly stated, “In the event of any further misconduct during this period you should be aware that this may result in an escalation of this warning and the next stage under the procedure is a dismissal.”

(v)                Refused to attend two further appointments with occupational health consultants that were arranged by the respondent.

The respondent submits that the complainant declined each and every opportunity to participate in the disciplinary process. The complainant did not avail of her opportunity to appeal any disciplinary sanction imposed on her, including ultimately the sanction of dismissal.

In conclusion, the respondent submits that at all relevant times the complainant was certified as fit to return to work. The disciplinary process embarked upon related solely to the complainant’s repeated failure to return to work despite repeated requests and being afforded ample opportunity to do so.

In direct evidence given at the hearing the respondent stated reiterated that the complainant had never appealed any of the warnings she had received and that she had refused the offer of a third medical. In regard to procedures, the disciplinary policy had been applied in the right way.

The respondent also stated that there was only one representation from the trade union regarding representation for the complainant, to which the respondent had replied. After that the only correspondence from the union was correspondence stating that the complainant would not attend hearings.

The respondent put forward that the reason given for the complainant’s non-attendance at the disciplinary hearings was medical; nothing to do with representation, which if not ventilated at the, cannot be considered now.

The respondent submits that has conducted itself fairly throughout the process and that the decision to dismiss the complainant was a reasonable response in all the circumstances.

The complainant provided a detailed written submission.

The complainant submits that the complainant was unfairly dismissed.

The complainant submits that on 29 August and 4 October 2019 she was invited by the respondent to attend a disciplinary hearing and was also advised both times that she had “the right to have a work colleague in attendance at the meeting.” The complainant submits that this restricted representation to a pool of fellow workers, denying her access to a trade union representative of her choice.

The complainant submits that a disciplinary hearing was held on 11 October, in the complainant’s absence, at which it was decided to issue the complainant with a final written warning.

On 18 October the complainant’s union, wrote to the respondent expressing concern that the complainant had been denied due process and natural justice. According to the complainant, a disciplinary hearing had taken place, resulting in the issuing of a sanction despite the complainant being unable to attend due to incapacity, which was supported by the opinion of her doctor, or being able to nominate a person of her choice to attend in her stead.

The complainant submits that on 19 October 2018, the respondent replied to the complainant’s union stating that it would not engage with trade unions, thus effectively denying the complainant the right to be represented in the disciplinary process. On 24 October 2018, the respondent informed the complainant that it would neither engage with nor recognise trade unions, reaffirming its denial of representation to her.

The complainant submits that on 16 November 2018, the respondent informed the complainant that a further disciplinary hearing was to take place and she would be able bring an “employee representative.” In light of the respondent’s refusal to engage with trade unions, this was interpreted by the complainant and her union that she would only be allowed bring a work colleague instead of a person of her choice. This interpretation is, as far as the complainant is concerned, underscored by the respondent’s stated policy on disciplinary procedures.

The complainant submits that she was entitled to have a union representative present at the disciplinary hearings but that as the respondent company does not recognise or deal with trade unions, she did not know a work colleague was also a trade unionist. The complainant contends that the code of practice does not restrict an employee to a workplace colleague, even in circumstances where that colleague is a trade unionist. Despite this the hearing went ahead and the complainant was dismissed.

The complainant submits that the decision to dismiss her was in contravention of S.I. No. 146/2000.  

In direct evidence, given at the hearing, the complainant stated that the reason she had not appeal any of the warnings given to her was because she did not believe the respondent allowed due process.

The complainant also put forward that it was not up to the respondent to decide who should represent her, it was her decision.

With regards to mitigation, the complainant stated that she had, up to the date of the WRC hearing, been certified unfit to work.

In concluding, the complainant submits that the disciplinary hearing had no standing given that she, regardless of whether the respondent felt she was fit to attend, had a right to representation which she was denied.

The facts of this case are not in dispute.

The complainant submits that as she was not afforded the representative of her choice at the disciplinary hearings, she was not afforded due process and thus this is an unfair dismissal.

The respondent submits that the complainant was afforded due process but chose not to engage in the process, did not attend the hearings and did not appeal any of the warnings issued to her; therefore, the decision to dismiss was fair in the circumstances.

At the WRC hearing, the respondent put forward that the complainant’s non-engagement with the process was not related to the matter of representation. Although this may have been the case at the outset of the complainant’s absence, the matter of representation was central to proceedings from 16th of October 2018, when the complainant’s union wrote to the respondent alerting them to the fact that the complainant was a member of the union and that a union representative would attend any meetings with the complainant.   Notwithstanding this the respondent continued to adhere to its policy which states, in relation to disciplinary hearings that, “you will be advised and have the option to have a colleague present.”

From 16th October 2018 the die was cast. The complainant would not meet the respondent unless she had her union official as her representative; the respondent would not meet her if she had. As neither side moved their position the outcome was inevitable.

With regard to the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provide:-

7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

• (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, provides that:-

• The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.

It is clear from the case law of the superior courts in this jurisdiction, that there is no fixed standard of fair procedures which lays down that certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances. However, there are a certain fundamental requirement of fair procedures that cannot be dispensed with regardless of the particular circumstances.

One element of fair procedures, the right to representation at a disciplinary hearing, was subject to a Labour Court Recommendation, LCR18364.

Regarding the Code of Practice on Grievance and Disciplinary Procedure contained in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, S. I. 146 of 2000, as referred to above, the Court found:

“It is clear from the Code of Practice as a whole that its object is to provide for good employment practice in the internal processing of grievance and disciplinary issues. To that end it provides that procedures must be fair and in conformity with the principles of natural justice. The right to representation is obligated by the requirements of procedural fairness and is clearly for the benefit of the employee. It follows that it is the employee and not the employer who has the right of election as between the modes of representation provided for by the Code of Practice. A contrary conclusion would not accord with the principles of natural justice nor with accepted standards of objective fairness. Accordingly, it is the opinion of the Court that a refusal to allow an employee representation by a registered trade union in the processing of a disciplinary issue constitutes a breach of the Code of Practice.”

That being the case I find that in the lead up to her dismissal the complainant was subject to an unfair procedure and therefore I must find the dismissal to be unfair.

Section 7(1)(c)(ii) of the Act states:

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.

As the complainant has been unfit to work up to the date of the WRC hearing no loss can be attributed to her dismissal and therefore the maximum award I can make is 4 weeks remuneration.

I find the complaint is well founded and I award the complainant the sum of €2,300.00.

Right to representation at a disciplinary hearing, trade union.