Worker

Employer

Anonymised Parties

Receptionist

Facility Management Solutions Provider

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00027574-001

08/04/2019

The Worker started her employment with the Employer on 25th March 2019. She was dismissed on 5th April 2019.

She submitted her claim to the WRC on 8th April 2019 alleging that she was unfairly dismissed.

Additional submissions were received from the parties post-hearing on 5th, 8th, 13th and 18th September 2019.

The Worker submits that she was offered a permanent position with the Employer and signed a contract to that effect on 6th March 2019. She commenced her employment on 25th March 2019 as Executive Administrator / Receptionist. She was based on the site of the Employer’s client (the Client)

The Worker submits that during her working time with the Employer she did not have ant difficulties carrying out the required duties and meeting the expected targets.

The Worker submits that on 4th April 2019, her Manager (Ms C) and HR Generalist (Ms R) met her at 5pm for a meeting discussing questions from the Worker related to her employment. The Worker claims that the meeting turned out to be a hearing based on a report the Employer had received from Ms J from the Client.

The Worker submits that at this meeting she was told that she had broken the contract by asking Ms J why the Client’s staff would have not been notified that she work full-time onsite. The Worker found nothing wrong by asking this question, as it was client-related and Ms J was the person who approached the Employer to hire her and who was involved in her recruitment from the very beginning.

The Worker submits that she was also informed that she had falsified timesheets. She explained that maybe she has made a mistake in completing the recent timesheet but this was not done on purpose. The Worker notes that, according to her manager (Ms C), the Worker was on a normal monthly payroll where timesheets are not important for issuing the payroll. Moreover, the Worker was informed that she does not greet the Client’s staff and behaves in an unpleasant manner.

The Worker submits that throughout the meeting, Ms R in particular was very rude, loud and highly aggressive towards her, which was extremely unprofessional and made her feel unsafe and very upset. The Worker claims that she was told that her working hours would not be paid if she does not send new timesheets immediately. The Worker submits that she was told that this meeting shall serve as a formal warning but not as a termination.

The Worker submits that, as a result of the meeting she was in an overall state of shock, completely exhausted and could not stop crying. Whilst stepping out of the bus, she slipped and fell hard on the ground. She claims that she suffered a head injury with bruised knees, and a witness explained to her that she was unconscious for a few minutes. The Worker claims that at home she felt strong pain in the forehead and knees and informed Ms C of the accident by text message. Furthermore, the Worker submits that she felt as she wanted to ‘terminate [her] life due to the unfortunate events of the day’. The Complainant submits that, as a result of the accident she was admitted to hospital on the next day and remained there overnight.

The Worker submits that she received minutes of the meeting of 4th April 2019 and a letter of termination without any further explanation from the Employer by email on 5th April 2019.

The Worker submits that the bullying from the Employer by providing false statements regarding her performance and attitude (which led to the dismissal) as well as the harsh behaviour of the Employer had a huge, negative impact on her mental and physical health.

The Worker argues that, as the termination letter includes the unfair reasons for dismissal, clearly the Employer wishes to harm her further by trying to boycott her from receiving any Social Welfare payments.

The Worker wishes to be compensated for the accident she suffered as a result of the bullying towards her which led to an unfair dismissal.

The Worker submits that she secured new employment on 28th August 2019.

The Employer submits that the Worker was employed as an administrator and worked for the Employer’s client from 25th March to 4th April 2019. Originally, the Worker applied for a temporary six-month administration position but she cancelled her initial interview having received an alternative offer of employment. Upon review, the Employer’s client informed the Employer that it now sought a full-time administrator. All applicants who had previously applied for the original role were contacted, informed of the changes of the position and interviews were scheduled accordingly.

The Worker attended an interview and was offered the role which she accepted with a start date of 25th March 2019. Accordingly, the Worker received a permanent contract (probationary dependant) via email on 6th March 2019.

Prior to commencement, the Worker communicated via email with the Employer on several queries relating to her employment, including applying for annual leave, payment dates, bank holidays and absenteeism. She also sought a verification of services letter after receiving an eviction notice from her accommodation.

The Employer’s Employment Handbook was provided to the Worker on 29th March 2019, contradictory to the Worker’s claim that she had not received one.

The information provided to the Worker demonstrates that she was fully aware of her employment with the Employer, the criteria and requirements of the role and had a clear line of communication provided by the Employer and Contract Manager, Ms C.

The Employer submits that on 2nd April 2019, the Worker raised a concern to the Client through email. The Employer’s Client responded, including the Employer’s HR, advising the Worker to raise any concerns in respect of her employment to her Employer. The query raised was addressed by the Client and subsequently by the Employer.

An informal meeting was arranged to discuss any concerns or queries that the Worker may have had, however, this was met with a hostile response. A verbal conversation was had with the Client, who highlighted they did not want to arbitrate any employment issues, requesting the Worker’s employment with the Employer and her position be reiterated to her. Additionally, it was at this stage that the Employer was informed that the Worker had left work early on Friday 29th March 2019 and had been late for work on Tuesday 2nd April 2019. Permission for this had not been sought by the Worker.

Following further concerning feedback from the Client a formal meeting was arranged with the Worker. The Worker was advised of said formal meeting under the Employer’s Policies and Procedures providing essential elements for natural justice and fundamental fair procedure.

On 4th April 2019, both Ms C and Ms R met the Worker. The meeting referred to four policy questions and four operational questions. The policy queries were the following:

·        Why employment queries were directed to the Client? The Worker was advised that any queries relating to her employment be directed to her Employer.

·        Incorrect timesheets – the Worker submitted incorrect timesheet omitting leaving early on 29th March 2019. She was advised to resend an accurate timesheet.

·        No communication of leaving early or tardiness.

·        Clarification of the Worker’s claim of ‘false email’. The Worker stated that there was a spelling error in her ‘Verification of Services’ letter which raised questions. She was informed that no query had been received by the Employer in that regard.

Operations issues addressed were as follows:

·        Staying at her post during her lunch period disrupting other staff. The Worker denied that.

·        An altercation with a colleague which was witnessed by the Client’s management. The Worker denied that.

·        The Worker was informed that as she was the first point of contact the Employer would expect a friendly approach, simple pleasantries and courteous demeanour. The Worker stated that she has had no issues and undertook to make improvements.

·        It had been reported that senior management had not been able to gain access to the car park as the barriers was not lifted, which was part of the Worker’s duties. The Worker indicated that the barriers had been defective ad reported it to the management.

The Employer submits that when asked if there were any further queries, the Worker became agitated, stating that she wanted her solicitor present. Upon this statement the meeting was concluded, advising that the Employer would happily meet again with legal representation present.

The Worker reviewed the minutes taken. The minutes were duly signed by all three individuals in attendance. The Employer submits that upon conclusion of the meeting the Worker apologised for her emails sent to HR acknowledging a poor attitude, claiming she was stressed due to being in the process of moving to a new house. The Worker then informed Ms C verbally that she would not be attending work on Friday 5th April 2019. When questioned, she said that the Employer would hear from her doctor and solicitor. As a result, the Employer was at a financial loss, having to request an alternative subcontractor to provide suitable cover for that day.

The Employer submits that at no point did any employee of the Employer act in an unprofessional manner during the meeting,

The same evening, 4th April 2019, the Worker claims to have slipped while stepping off the bus, a doctor’s statement asserts that she collapsed and a text message to a colleague claims a diabetic collapse. The Employer submits that with there differing accounts of the incident, it is difficult to establish which to be credible and accurate. The Employer draws attention to the doctor’s notes which clearly state that the Worker has a history of collapsing. The Employer does not accept any responsibility for any alleged medical claims.

On 5th April 2019, the Employer made a formal decision to terminate the employment of the Worker with immediate effect, in line with the Minimum Notice and Terms of Employment Act 1973-2005, on the grounds of capability, conduct and competence.

The Worker asserts that she was unaware of the termination of employment, however she responded to the email containing the letter of termination and minutes of the meeting. She also disclosed her dismissal to medical professional on the day of termination.

Following the termination, the Worker supplied an email from her former employer to the Client. She was informed that this was unacceptable. She persisted on contacting the Client, who inevitably blocked all email correspondence from the Worker. The Worker’s correspondence to the Client contained untrue, contradictory and unsubstantiated statement. It was requested that the Worker cease and a written retraction be provided. No retraction has been received to date. A separate commercial legal suit regarding breach of confidentiality, defamation and breach of GDPR is current running parallel.

In respect of the Worker’s assertion that the Employer and the Client are boycotting her application for further employment via social networks, including defamation, the Employer confirmed that it does not participate in social networking and holds no accounts. The Employer also questions the matter of the Worker’s landlady allegedly obtaining a negative reference from the Client.

The Employer claims that the most recent accusations only add more concern to the fictitious account the Worker is relying upon.

The Employer confirmed at the hearing that the Worker was not formally informed of performance issues and the meeting of 4th April 2019 was not intended to be a disciplinary one. The Employer submitted that dismissal was not considered at the time. However, subsequently it was decided that the Worker would be dismissed for not turning up to work on Friday 5th April, being late on 2nd April and leaving earlier on 29th March 2019.

The Employer confirmed that the Worker was not formally called to a disciplinary meeting, she was not formally informed of any performance issues, she was not given right to appeal the decision to dismiss.

Both parties‘ submissions to the hearing addressed various matters including unfair dismissal, defamation, personal injury, breach of confidentiality and breach of GDPR at some length.

The herein case relates to the claim of unfair dismissal and only material of relevance to that complaint is taken into consideration.

Whilst an employee with less than twelve months of service is not covered by the Unfair Dismissals Acts, the fact that they may be on probation does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters.

In its determination LCR 21798, the Labour Court found that:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

… The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.

The Court is satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court is satisfied that he was denied natural justice.”

It follows, therefore, that before a decision is made to dismiss an employee, an employer should first tell the employee of the aspects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving their performance.

The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

The Worker in the herein case submitted that she was not provided with details of any performance issues and she was not aware that she was in danger of losing her job.

The document presented at the hearing shows clearly that the Worker was invited to ‘Policy and Operations Meeting’ by letter dated 2nd April 2019. The letter outlines clearly the purpose of the meeting as ‘to clarify ongoing confusion as to your status of employment, answering questions based on your employment with [the Employer] and addressing unauthorized leave of absence’. The letter further advises that ‘…this letter is not formally part of any formal disciplinary procedure’.

However, the letter of 5th April 2019 terminates the Worker’s employment with immediate effect due to:

·        Breach of Contract of employment

·        Falsifying Company documents

·        Unsatisfactory conduct

The Worker was not given the right to appeal this decision.

The WRC and the Labour Court had consistently held that an employer is required to follow fair procedures before it makes a decision to impose a disciplinary sanction on a worker or to dismiss the worker and that the principles of natural justice and fair procedures apply equally to employees during their probationary period as they do thereafter. I find that the Employer in this case has disregarded this fundamental principle in the manner in which it effected the Worker’s dismissal.

I am satisfied that the Employer’s handling of the entire matter breached the Worker’s right to fair procedures and natural justice, and she was dismissed without any due process.

I recommend that the Employer pay the Worker the sum of €2,500 in compensation for her unfair dismissal.

For the avoidance of doubt, I confirm that this recommendation is particular to the unique facts and circumstances of the instant case and that it cannot be quoted or used by either party or any other party in any other case.

Unfair dismissal – less than 12 months service