ADJ-00019911

Complainant

Respondent

Anonymised Parties

A Social Care Worker

A Social Care Provider

Representatives

Fórsa

 Mr. Desmond Ryan B.L. instructed by Beale & Co., Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00026368-001

19/02/2019

The Complainant commenced employment with the Respondent as a Social Care Worker on 1 April 2018 and usually worked 48 hours per week. She claims that her employment was terminated on 15 January 2019 and she claims that the decision to dismiss her was unfair and was on account of her trade union activity. 

The Respondent denies the allegations made against it.

The following is a summary of the Complainant’s case.

The Complainant claims that she commenced employment in April 2018 as a Social Care Worker.

She said that in the weeks prior to her dismissal she had undertaken the role of trade union contact person and management were fully aware of this involvement. She said that on 23 November 2018 the Respondent’s management issued an email to all staff in relation to alleged trade union activities and meetings being arranged. The Complainant said that the email to all staff explicitly mentioned that it was aware that the staff were seeking to join a trade union. It also states that “currently [the Respondent] does not recognise unions” and “unauthorised meetings on [its] grounds are not allowed under any circumstance”.

She claims that it is clear that management took exception to a trade union coming into the organisation and the role that she had taken as trade union staff representative.

The Complainant said that she was given no reason or explanation for her dismissal and can only determine that her dismissal was as a direct result of her trade union activity.

The Complainant said that she joined a trade union along with a number of other employees, she claims that staff within the Respondent had made efforts to organise themselves and that she was identified and perceived by management as the main organiser within the group for her trade union activity.

The Complainant said that management offered her to be the staff representative nominee on a staff/management group that was being set up to which she accepted. However, it all her time working there the group never met or were active. Accordingly, as far as she was concerned there was no way to interact with management on staff issues.

The Complainant said that she was not given any reason for her dismissal. She was invited into a meeting and told that there was no more work for her, and the Respondent was not suited to her. She said that there was no issue with her or her work up to that point. She claims that she had requested a reason from her line-manager, but nothing was forthcoming. The Complainant also claims that she was denied due process and fair procedures in accordance with normal procedures and natural justice.

The Complainant in her legal submission cited two legal cases in support of her position, Frizelle -v- New Ross Credit Union Limited [1997] IEHC 137, and Preston -v- Standard Piping [1999] ELR 233 where in both cases the employer did not follow due process by conducting a proper investigation prior to deciding on the respective dismissals.

The following is a summary of the Respondent’s case.

Preliminary matter

The Respondent said the Workplace Relations Commission has no jurisdiction to hear the complaint since it arises from a contract of employment that was less than one year’s continuous services in duration. It said there are absolutely no links whatsoever between the Complainant’s dismissal and any alleged trade union membership as contended by the Complainant.

The Respondent states that under Section 6(2)(a) of the Unfair Dismissal Act it is deemed unfair to dismiss an employee wholly or mainly from the employee’s membership or engaging in activities. It said as stated in Redmond on Dismissal Law [3rd edition, 2017, at [21.15]]that the burden of proving as unfair union dismissal in such circumstances rests with the employee and unless the Respondent’s motives are “glaringly obvious and sufficient knowledge and awareness can be attributed to it, the onus will be very difficult to discharge”. The Respondent said that no submissions were furnished by the Complainant to in any way connect her dismissal with any trade union matter whatsoever. Accordingly, the Complainant lacks the locus standi for taking a case under the Unfair Dismissal Act.

Substantive matter

The Respondent said that its sole reason for terminating the Complainant’s employment was that she was not a good match for the organisation as she consistently did not meet the core values of the Respondent. It said that staff work with clients, both adults and children, with all abilities and disabilities and there is an expectation that everyone has to understand and adopt the ethos of the Respondent in their work. The Respondent said that the Complainant was failing to grasp understanding its core values and what was expected of her in this particular environment. The Respondent said there were a myriad of difficulties in dealing with the Complainant while she was working there. All of which it claims illustrates that she was not a good match. It listed a number of examples of issues it had with the Complainant during her time there, from issues with client’s medication; inappropriate communications and interactions with staff; including times in front of Clients, resulting in unnecessarily upsetting vulnerable people with special needs; failure to apply care as per care plans and failure to adhere to HIQA-mandated obligations in relation to safeguarding.

The Respondent said that is sought to support the Complainant and it moved her to a different work area on her request. However, it became apparent that things were not progressing like it hope and expected. The Respondent said that it had to carefully monitor the situation with particular concern of the effect on its clients.

The Respondent said that it fully recognises the right of any employee to join a trade union. It is committed to facilitating staff engagement, participation and representation in decision making and this it said is evidenced in its “staff representative nomination”. The Respondent said that the Complainant raised no issue with it with regard to her trade union activity in advance of and on the Respondent’s discussion over the termination of her employment with it. The regional manager gave evidence that he was unaware that the Complainant was a member of a trade union. He also gave evidence that the Respondent was currently involved in ongoing discussions for the recognition of trade union with the organisation as a whole.

The Respondent said that all interactions and meetings with the Complainant regarding her dismissal were tactful, discreet and fully respectful towards her. It claims that its approach was fair and appropriate in all circumstances.

The Respondent rejects the allegations made by the Complainant.

The Relevant Law

The Complainant alleges that her dismissal occurred as a result of her trade union activity. Section 6(2)(a) of the Unfair Dismissals Act (as amended) sets out the legal provisions concerning dismissal and trade union membership or activity:

“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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage”

Section 14 of the 1993 amendment to the Unfair Dismissals Act removes the requirement for a person claiming that their dismissal arose from trade union activity to have completed one year of service with their employer. I refer to the decision in Michael Reid v John Oxx, [1986] ILT 4, 207, where it states that, “…where a person is dismissed for trade union activity the necessary qualification of a year’s employment so as to qualify for redress under the Act is dispensed with but at the same time the presumptions under subsection (1) and (6) of the section putting the onus of proof on the employer shall not then apply.”

It follows therefore that the legal burden is on the Complainant to show that her dismissal was wholly or mainly on the ground of trade union membership/ activity.

The Complainant was employed by the Respondent from 1 April 2018 to 15 January 2019 when her employment was terminated. She had less than 12 months’ service. The dismissal was not in dispute.

The question for me is whether or not the Complainant’s dismissal resulted wholly or mainly form the trade union membership/ activity.

There is no dispute between the parties that the dismissal occurred. However, the reasons for the dismissal are disputed by the parties. The Complainant submits that she was dismissed due to her trade union activities. The Respondent rejects the claim and argues that she was dismissed due to her failure to meet its standards and therefore was not a good fit with the organisation, its ethos and values.

Having carefully considered all the evidence, I find that there is clearly a difference of opinion in how the Complainant wanted to carry out her role and the style that she brings to the organisation, to that of what the Respondent expects and wants replicated within its organisation. I have conflicting reports on how matters were dealt with and the concerns raised. The Complainant in her evidence suggested that there were no issues with her work or performance, that she was simply ambushed and dismissed. On the other hand, there is substantial evidence that there were clearly performance issues relating to the Complainant’s employment which despite attempts by the Respondent to address that they were not improving.

The Complainant case is that she did not have one year’s service and she must then establish a prima facie case from the evidence adduced that her dismissal was because of her membership of a trade union or her engaging in activities on behalf of a trade union.

In evidence both sides point to the same email sent out by senior management to all staff on 23 November 2018. The Complainant’s view is that, that email is considered a threat to staff on possible trade union involvement whereas the Respondent said that the email is a statement of its position about hosting meetings on its premises and during worktime. I have read the email in its entirety and I note that the email contains much more clarity and information about the Respondent’s position than the points focused in on by the Complainant. I am satisfied that the tone and content is not threatening. I find it to be quite the opposite.

On the balance of probabilities, I am satisfied that there were issues that were reoccurring in the Complainant’s performance at the time. The evidence, to me, suggests that she was unwilling or unable to adapt to the expected level and this was primarily the reason for her dismissal. Accordingly, I am satisfied that the dismissal of the Complainant did not result wholly or mainly from the employee's membership of a trade union or her engaging in activities on behalf of a trade union, as defined in section 6(2)(a) of the Unfair Dismissal Act.

Accordingly, I find that the complaint is not well-founded.

For the reasons set out above, I have decided that the complaint under the Unfair Dismissals Act is not well-founded.

Unfair dismissal Act - trade union activity - not well-founded.